Date: 20030220
Docket: T-1331-01
Neutral citation: 2003 FCT 201
Ottawa, Ontario, this 20th day of February, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
AVNER GORDON and DAVID GORDON
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application brought under Rule 33(c) of the Federal Court Rules, 1998 of the decision of Patricia Birkett, Register of Canadian Citizenship (the "Registrar"), dated March 21, 2001, wherein the Registrar refused to issue citizenship certificates to the applicants who were born outside of Canada.
Background
[2] The applicants, Avner Gordon ("Avner") and David Gordon ("David") (the "Applicants"), are brothers who are citizens and residents of Israel. They were born in Israel on January 8, 1956 and November 15, 1952, respectively.
[3] The Applicants' late father, Matthew Isaac Gordon ("Matthew"), was a Canadian citizen who was born in Kitchener, Ontario on December 22, 1916. Under the Naturalization Act, 1914, Matthew acquired natural-born British subject status by virtue of his birth in Canada. He was deemed to be a natural born Canadian citizen ex lege under paragraph 4(1)(a) of the Canadian Citizenship Act, which came into force on January 1, 1947 and remained in force until February 14, 1977.
[4] David's and Avner's births were registered with the Department of Citizenship and Immigration, and both Applicants were issued Certificates of Canadian Citizenship based on paragraph 5(1)(b) of the former Act. This paragraph provides for the registration of children born outside of Canada, in wedlock, to Canadian fathers. Once these children are registered, they are Canadian citizens retroactive to birth. The Applicants also acquired Israeli citizenship by reason of their birth in Israel.
[5] In December 1951, Matthew moved to Israel with the intention to settle there. According to Officials of the Israeli Ministry of the Interior, Matthew could have automatically acquired Israeli citizenship ex lege under paragraph 2(b)(2) of the Israeli Nationality Law 5712-1952 when he became a permanent resident of Israel under the Law of Return 5710-1950. However, on May 20, 1959, Matthew declined Israeli citizenship pursuant to paragraph 2(c)(2) of the Israeli Nationality Law.
[6] Matthew worked as a manager for a subsidiary of Israel Aircraft Industry and was involved with matters relating to national security. Due to the sensitive nature of this employment, Matthew was informed by his employer that he would have to become an Israeli citizen. On February 8, 1969, Matthew wrote a letter to the "Head of Office of Immigration and Registration" at the Ministry of the Interior in Israel, requesting Israeli citizenship. In this letter, Matthew also requested that the Minister of the Interior exercise his authority so that he could obtain Israeli citizenship without having to give up his Canadian citizenship.
[7] Matthew became an Israeli citizen as of the date of this letter. As a result of his acquisition of Israeli citizenship, Canadian citizenship officials determined that Matthew lost his Canadian citizenship under subsection 15(1) of the Canadian Citizenship Act, R.S.C. 1952, c. 33 (the "former Act"). This section provides that where a Canadian citizen, by a voluntary and formal act acquires the citizenship of another country, he ceases to be a Canadian citizen. As a consequence, David and Avner lost their status as citizens by operation of subsection 20(1) of the former Act. Subsection 20(1) provides that where the responsible parent of a minor child ceases to be a Canadian citizen, that child ceases to be a Canadian citizen if he is or becomes, under the law of another country, a citizen of that country.
[8] On several occasions over the past twenty years, the Applicants have approached Canadian citizenship officials contesting the loss of their Canadian citizenship. On each occasion, they were informed that they had ceased to be Canadian citizens by automatic operation of subsections 15(1) and 20(1) of the former Act. On May 15, 2000, the Applicants applied for a Citizenship Certificate from outside Canada. This application was refused by the Registrar by letter dated March 21, 2001:
We have once again carefully reviewed this matter and continue to remain of the opinion that the late Mr. Mathew Gordon and his sons ceased to be Canadian citizens. The circumstances and the details resulting in their loss of status are described in the former Registrar's letter of June 2, 1999.
In my view, the most telling evidence which supports the conclusion that the late Mr. Gordon voluntarily and formally requested Israeli nationality is reflected in his letter to the Israeli Ministry of the interior dated February 9, 1969. In his letter, the late Mr. Gordon specifically requests Israeli citizenship. In a translated letter from the Israeli Ministry of the Interior addressed to the Canadian Embassy, Tel Aviv, dated January 13, 1985, the competent Israeli authorities confirmed that the late Mr. Gordon acquired Israeli citizenship as of the date of his letter. The loss of Canadian citizenship for the late Mr. Gordon and his two sons occurred by automatic operation of law once the Mathew Gordon acquired another nationality by a voluntary and formal act.
In light of the foregoing, I reiterate repeated requests to surrender, for cancellation, both Registrations of Birth Abroad certificates issued to your clients.
The Applicants are challenging this decision in this application for judicial review.
Analysis
[9] While sympathetic to the Applicants' situation, I am unable to grant this application. My reasons follow.
[10] The Applicants do not dispute the fact that their father "voluntarily and formally requested Israeli nationality" on February 8, 1969. The only issue is whether subsection 20(1) of the former Act was properly applied to the Applicants who were, at the time and in their submissions, minors under a disability or incapacitated.
[11] The requirements of subsection 15(1) of the former Act were met when Matthew wrote his letter to the Israeli Ministry of the Interior and his loss of Canadian citizenship was in conformity with that subsection.
[12] As a result, David and Avner, who were Israeli citizens by virtue of their birth, lost their Canadian citizenship by the automatic operation of subsection 20(1). All of the conditions of subsection 20(1) were met in this case:
· when Matthew obtained Israeli citizenship, David and Avner were minor children, defined in paragraph 2(m) of the former Act as a person who has not attained the age of 21 years;
· their responsible parent, defined as their father in paragraph 2(n) of the former Act, ceased to be a Canadian citizen under section 15 of the former Act;
· at that time, the Applicants were citizens of another country, Israel.
Therefore, subsection 20(1) of the former Act was properly applied to this case.
[13] The Applicants submitted that to deprive a person under a legal disability of his Canadian citizenship without his consent, without his taking formal action and without his ratification as an adult is unfair, unreasonable and unconscionable. The Applicants cited the decision of McKeown J. in Katkova v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 549 (T.D.) (QL) in support of this submission. I have reviewed this case, which addresses the determination of one's country of nationality, and could find no support for or reference to the Applicants' submission. McKeown J. does address the issue of consent; however this issue is addressed in the context of the requirement of a desire to settle in Israel under the Israeli Law of Return. As a result, this analysis is not applicable to this case and Katkova is of no assistance to the Applicants.
[14] The Applicants drew an analogy to the case of a permanent resident who is found not to have formed the intent to abandon Canada even though he remains outside of Canada for an extended period of time. The Applicants relied on decisions of the Immigration Division and the former Immigration Appeal Board which have held that:
it is possible for an individual with permanent residence status to remain outside of Canada for extended periods of time, without having formed the intent to abandon Canada as his or her place of permanent residence. This has been found to be so in the case of individuals who were removed from Canada by their parents or guardians as minors, either because at the time of leaving Canada they did not have the capacity to form the intent to abandon Canada as their place of ordinary residence, or they were unaware of having status in Canada when they departed (Chan v. Canada (Minister of Citizenship and Immigration), [2001] I.A.D.D. No. 126 at para. 13 (QL)).
[15] With respect to this submission, I note that the legislation in respect of loss of permanent residence status is different from that in question in this case. In particular, section 24 of the Immigration Act, R.S.C. 1985, c. I-2 lacks a provision parallel to subsection 20(1) of the former Act. Further, section 24 contains the concept of "intent"; subsection 20(1) contains no such concept. Accordingly, I do not find the permanent residence situation to be analogous to that of the Applicants.
[16] In their written submissions, the Applicants also raised an argument under the Canadian Charter of Rights and Freedoms. These arguments were abandoned by the Applicants during their oral submissions.
[17] Since subsections 15(1) and 20(1) of the former Act were properly applied to the facts of this case, the Applicants lost their Canadian citizenship on February 8, 1969. As a result, the Registrar did not err in refusing to issue citizenship certificates to the Applicants because subsection 12(1) of the Citizenship Act, R.S.C. 1985, c. C-29 provides that only Canadian citizens can be issued those certificates. Therefore, I cannot interfere in the decision of the Registrar.
ORDER
THIS COURT ORDERS that the appeal is dismissed
"Judith A. Snider"
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-1331-01
STYLE OF CAUSE: AVNER GORDON & DAVID GORDON
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, FEBRUARY 12, 2003
REASONS FOR ORDER BY: SNIDER J.
DATED: THURSDAY, FEBRUARY 20, 2003
APPEARANCES BY: Mr. Irvin H. Sherman
For the Applicants
Ms. Leena Jaakkimainen
For the Respondent
SOLICITORS OF RECORD: Mr. Irvin H. Sherman
Martinello & Associates
Barristers and Solicitors
255 Duncan Mill Road
Suite 208
Don Mills, Ontario
M3B 3H9
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20030220
Docket: T-1331-01
BETWEEN:
AVNER GORDON & DAVID GORDON
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER