Date: 20091218
Docket: T-1871-08
Citation: 2009 FC 1290
Ottawa, Ontario, December 18,
2009
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
FANG
WANG
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The Minister of
Citizenship and Immigration (the “Minister”) appeals the Citizenship Judge’s
decision to approve Ms. Fang Wang’s October 1, 2008 application for citizenship
pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985 c. C-29
(the “Act”).
[2]
The
Minister submits the Citizenship Judge:
(a) gave
inadequate reasons for his decision, and
(b) made an error
of law in his determination Ms. Wang satisfied the residency requirements
section 5(1)(c) of the Act.
[3]
For the following
reasons I allow the appeal and return the matter for redetermination by another
citizenship judge.
Background
[4]
Ms. Wang (the “Respondent”)
is a 33 year old woman from Shanghai in the People’s Republic of China. She came to Canada in 1998 as a student and became a
permanent resident of Canada on September 24, 2001. She married her
Canadian citizen husband on August 17, 2001.
[5]
Ms. Wang applied for
citizenship on October 9, 2007. The relevant period for satisfying the residency
requirement was the preceding four years commencing October 9, 2003. In her
application the Respondent declared she was physically present in Canada during the previous four years; 1383 days out of the relevant
1460 days.
[6]
On June 11, 2008 Ms.
Wang received a request for additional documentation including:
·
Passport including all pages from October 9,
2003 to present
·
Income tax
returns and assessments from 2003 to present
·
Financial
institution banking records
·
Personal
health claims
·
Marriage
and/or divorce certificates
·
Proof of domicile
·
Completed
residence questionnaire
·
Record of
movement for China Oct 9, 2003 to present
·
Current
immigration status in the U.S.A. including travel records for
the U.S.A. 2003 to present
[7]
She
responded by letter on July 14, 2008 providing some of the requested documents
and stating:
First [sic], on applicable dates, from
05/11/1998 to 30/10/1999 I was a registered student at Centennial College, Scarborough, 01/11/1999 to
30/10/2000 I was employed at William Medical Technologies, Inc. Ajax, Ontario. On 17/8/2001 I married my
husband Trevor Jon Williams. I have been married to Trevor John Williams, date
of birth May 18, 1963, a Canadian Citizen now for 7 years [sic] as of
this coming August 17th, I landed Canada on Sept. 24, 2001. I was employed at
Shitori Japanese Restaurant from March 2002, to June 2003. After leaving this
job, I stayed home from June 2003 to Sept 2006. Now I am studying a on-line
real estate course and helping a real estate professional conduct marketing. On
Oct. 2007 my husband and I purchased a Condo at One Bloor West. I have
documented my residence status, confirmed my Canadian education, my marriage to
a Canadian citizen, and most recently the purchase of our new condo. For the
past ten years my life has been devoted to Canada and my Canadian husband. It is for these
reasons I wish to become a Canadian citizen.
[8]
On
July 23, 2008 a Notice to the Citizenship Judge was placed on the Respondent’s file, flagging as
reasons for the Notice the failure to provide: copies of personal health claims
payments, all pages of current and expired passports, record of movement from
China, past and current status in the U.S.A. and proof of employment or means
of income to support living in Canada. An additional reason for the Notice was
because her current passport was issued by the Chinese Consulate in Los Angeles,
California, U.S.A. The issue
raised by the Notice was whether the Respondent provided proof she resided in Canada.
[9]
Ms.
Wang attended the Citizenship hearing on August 19, 2008. On that same day,
August 19, 2008, she was given a further Request for Supporting Documentation
for:
·
Copy of
landing passport or police report (of lost passport)
·
Record of
movement from China
·
Proof of employment
in Canada
·
Proof of status
in the U.S.A.
·
Marriage certificate
[10]
On
September 30, 2008, Ms. Wang provided additional documents.
[11]
Ms.
Wang declares in her affidavit the Citizenship Judge asked for her passports,
which she provided during the interview. He asked why she hadn’t reported trips
to the U.S.A. recorded in
the passports and she explained an immigration consultant completed her
application incorrectly. She told the Judge she had taken three separate one
week trips to the U.S.A. The Respondent also declares her husband accompanied her to the citizenship
interview and told the Citizenship Judge he travelled to the United
States
for investments to explain why they held E-2 investment visas issued by the U.S.A.
Decision under Appeal
[12]
The
Notice to the Minister signed by the Citizenship Judge states Ms. Wang
satisfied all the citizenship requirements, including the residency
requirements of paragraph 5(1)(c) of the Act. The Citizenship Judge gave as
very brief reasons:
After reviewing the Applicants documents
and the information shared with me I am satisfied that the Applicant meets the
residence criteria.
[13]
The
Citizenship Judge approved Ms. Wang’s application for citizenship on October 1,
2008.
Legislation
[14]
Section
5(1) of the Act requires the Minister grant citizenship to any person:
(a) who applies
for citizenship,
(b) is eighteen
years or over,
(c) is a
permanent resident and has accumulated in the previous four years at least
three years of residence in Canada calculated in the manner specified in the
Act,
(d) has an
adequate knowledge of one of the official languages,
(e) has an
adequate knowledge of Canada and the responsibilities of citizenship, and
(f) is not under
a removal order or the subject of a declaration by the Governor in Council under
section 20 of the Act.
[15]
A
citizenship application is reviewed by a citizenship officer and the applicant
has an opportunity to address any gaps in the documentation at that point. Where
the documentation is incomplete, a citizenship judge may require the applicant
attend, alone or with others, and give evidence that may satisfy the judge the
requirements of the Act are met. Canada (Minister of
Citizenship and Immigration) v. Mahmoud, 2009 FC 57 (Mahmoud)
at paragraph 3.
[16]
Subsection
14(1) of the Act requires citizenship judges to consider an application for
citizenship and determine whether or not an applicant meets its requirements. After
determination, the citizenship judge shall approve or deny the application and
notify the Minister accordingly with reasons for the decision. Specifically, subsection 14(2) provides:
Forthwith after making a
determination under subsection (1) in respect of an application referred to
therein but subject to section 15, the citizenship judge shall approve or not
approve the application in accordance with the determination, notify the
Minister accordingly and provide the Minister with the reasons therefore.
(emphasis added)
[17]
Section
14(5) of the Act provides the Minister or the applicant with a right of appeal
to this Court of the citizenship judge’s decision.
Standard of Review
[18]
Reviewing the adequacy
of a citizenship judge’s reasons is a question of procedural fairness. Justice Russell of this Court found the standard for
questions of procedural fairness is correctness in Pourzand v. Canada
(Minister of Citizenship and Immigration) 2008 FC 395 at paragraph 21 where he wrote, “Procedural
fairness questions are pure questions of law reviewable on a correctness
standard.” (also see Andryanov v. Canada (Minister of Citizenship and
Immigration), 2007 FC 186 at paragraph
15).
[19]
Reviewing a citizenship
Judge’s findings of fact and analysis of the facts in light of the statute is a
question of mixed fact and law. The appropriate standard of review of a citizenship
judge’s findings in regards to the residency requirements of the act is
reasonableness. Dunsmuir
v. New Brunswick, 2008 SCC 9 (Dunsmuir) at paragraphs 44, 47, 48 and 53; Canada (Minister of Citizenship and
Immigration) v. Mueller, 2005 FC 227 at paragraph 4.
[20]
When reviewing
a decision on the standard of reasonableness, the analysis is concerned with
"the existence of justification, transparency and intelligibility within
the decision-making process” and also “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law": Dunsmuir at paragraph 47. Put another way, this Court should
only intervene if the determination was unreasonable in the sense that it falls
outside the "range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
Analysis
Preliminary Issue
[21]
The Minister submitted an
affidavit containing a copy of an earlier citizenship application by Ms. Wang. That
earlier application was not part of the Record before the Citizenship Judge. The
only reference to Ms. Wang’s prior application in the Record was in the July
23, 2008 Notice to the Citizenship Judge which contained a brief statement the
previous application failed because Ms. Wang did not provide satisfactory
documentation to explain lengthy absences from Canada.
[22]
Ms. Wang also provides evidence not
on the Record in her affidavit stating she and her husband gave further
evidence to the Citizenship Judge at the hearing. That evidence was not placed
on the Record and came to light only after this appeal was commenced.
[23]
In Canada (Minister
of Citizenship and Immigration) v. Hung, [1998] F.C.J. No. 1927, Justice
Rouleau wrote at paragraph 8, “Under the new Rules, citizenship appeals are no
longer trials de novo, but instead are now to proceed by way of
application based on the record before the Citizenship judge: no longer may new
evidence be submitted before this Court”.
[24]
Accordingly, I will not
consider the new evidence introduced by Minister’s affiant concerning Ms. Wang’s
prior citizenship application.
[25]
Ms. Wang’s affidavit
evidence requires a more nuanced treatment. She declares her husband provided
evidence to the Citizenship Judge at the time of the hearing. This is
unchallenged. However, I do not find this evidence retrospectively explains the
Citizenship Judge’s reasons because the Judge does not state it is evidence he
considered in his decision.
Reasons for
Determination
[26]
The Minister argues the
reasons given by the Citizenship Judge for the decision are inadequate. He submits: “Reasons for decision are adequate when they
are clear, precise, intelligible and when they state why the decision was
reached. Adequate reasons show
a grasp of the issues raised by the evidence.”
[27]
The
issue raised by the evidence is residency as was brought to the Citizenship
Judge’s attention by the July 23, 2008 Notice. The Minister points to the gaps on the Record including
missing or inconclusive
documents it characterizes as necessary:
·
No proof of domicile
·
No health insurance summary
·
No travel records
·
Selective portions of her passport
·
Minimal banking information
[28]
The Minister contends in addition to
missing documentation, there were indicia on the record of an existing and
continuing connection to the U.S.A. Ms. Wang’s marriage licence shows she was
a resident of Long Beach, California in 2001 and her current
Chinese passport was issued by the Chinese Consulate in Los Angeles, California
in 2007. I note, however, the date of marriage and the date of issuance of the
passport are outside the residency period at issue.
[29]
Ms. Wang submits the
Citizenship Judge had the benefit of the information provided at the hearing as
set out in her affidavit. She argues, based on Canada (MCI) v. Lau, [1999]
F.C.J. No. 290 (T.D.), a judge who benefits from viva voce evidence has
likely filled the gaps in the record.
[30]
Ms.
Wang further submits the Notice to the Minister form provides limited space for
Citizenship Judge’s reasons and more extensive reasons are not required.
[31]
Addressing
the last point first, I agree with Justice Hughes in Mahmoud at
paragraphs 19 and 20 where he writes:
“… Respondent’s Counsel further argues
that a space about 4 centimetres high is all that the form provides for
Reasons, thus the Reasons are expected to be cryptic. … I find the
requirement that a citizenship judge provide clear and adequate reasons must prevail
over any apparent constraint imposed by a form. It is unfortunate that a
better form was not provided such as one indicating that a page or pages may be attached in which appropriate reasons shall be
given. …” (emphasis added)
[32]
Section 14(2) of the Act
requires the Citizenship Judge to give reasons when he notifies the Minister. In
Mahmoud at paragraph 6 Justice Hughes wrote:
“Thus, unless there is an appeal, the approval or refusal by a citizenship judge, is a final matter as to the applicant's Canadian citizenship. The Minister has no further function to perform or other remedy
other than an appeal. Therefore the provision of reasons by the citizenship judge assumes a
special significance. The reasons should be sufficiently
clear and detailed so as to demonstrate to the Minister that all relevant facts
have been considered and weighed appropriately and that the correct legal tests
have been applied.” (emphasis added)
[33]
The New Brunswick
Supreme Court of Appeal concluded where
there is a statutory right of appeal, reasons should always be provided. R.D.R.
Construction LTD. v. Rent Review Commission, [1982] N.S.J. No. 546; 139 D.L.R. (3d) 168. This case was later cited
by Justice L’Heureux-Dubé for the same principle in Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 42.
[34]
David Phillip Jones and Anne de
Villars make this argument in Principles of Administrative Law, 5th
ed. (Toronto: Carswell, 2009) at p. 374:
“Without reasons, it may be
impossible to demonstrate to the reviewing court that an error of law occurred,
and therefore, impossible to correct a result arrived at on irrelevant
evidence, bad faith, or for an improper purpose”.
[35]
There is no allegation of impropriety against the
Citizenship Judge in this case. However, it is the Minister’s role to protect
the right of citizenship and the Minister should be afforded the simple tool of
reasons to fulfill that role. The Minister may
not exercise any discretion once a citizenship judge has made a determination. The
only recourse the Minister has to
challenge a citizenship judge’s decision is appeal to this Court. In order to decide
whether an appeal should or should not be initiated, the Minister needs to know
the reason for the citizenship judge’s determination on issues arising from the
application.
[36]
Justice Russell considered the sufficiency
of reasons in Wang v. Canada (Minister
of Citizenship and Immigration) 2008 FC 391 at paragraph 25 where an unsuccessful applicant for
citizenship had appealed:
“26 Not
only do reasons
foster better decision-making by ensuring that the issues and reasoning are
well-articulated, but they also provide a basis for an assessment of possible
grounds for appeal or review. This is particularly important when a decision is
subject to a deferential standard of review VIA Rail
Canada Inc. v. National Transportation Agency, 193 D.L.R. (4th) 357
(F.C.A.) at paragraphs 17 and 19.
27 The
duty requires that the reasons be adequate. They must set out the findings of fact
and must address the major points in issue. The reasoning process followed by
the decision-maker must be set out and must reflect a consideration of the main
relevant factors. Further, a determination of whether reasons are adequate must be
considered in light of the particular circumstances of each case. Where a
person's status is at issue, the requirements are more stringent. Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 25,
75, Via Rail, above, at paragraphs 21-22.”
(emphasis added)
[37]
It may be possible to
infer the reasons are sufficient if the Citizenship Judge’s notes indicate some
analysis and consideration of the evidence. Justice L’Heureux-Dubé wrote in Baker
at paragraph. 44:
“…part of the
flexibility that is necessary … when courts evaluate the requirements of the
duty of fairness with recognition of the day-to-day realities of administrative
agencies and the many ways in which the values underlying the principles of
procedural fairness can be assured. It upholds the principle that
individuals are entitled to fair procedures and open decision-making, but
recognizes that in the administrative context, this transparency may take place
in various ways.” (emphasis added)
[38]
The Citizenship Judge did not outline
the information he considered in regards Ms. Wang’s residency. He neither made
reference to the nature of information received nor did he refer to documents
he reviewed at the hearing. The Citizenship Judge simply stated a conclusion to
the effect that after reviewing documents and information he was satisfied
Ms. Wang meets the residence criteria. The Citizenship Judge has a statutory
duty under section 14(2) of the Act to provide reasons. He did not comply with
his duty and his decision therefore cannot stand.
[39]
Coming
to the conclusion I have on the inadequacy of the reasons, I need not decide
whether the Citizenship Judge failed to articulate the legal test used in
determining residency.
Remedy
[40]
Ms.
Wang submits she provided further information to the Citizenship Judge which
was not in the Record. In these circumstances
I consider the appropriate course is to refer the matter back for
redetermination before a different citizenship judge and afford Ms. Wang the
opportunity to file further documentation as she considers necessary.
[41]
The Minister seeks costs of this
appeal. I choose to follow Justice Hughes’ decision in Mahmoud not to
award costs. Even though I find for the Minister, he shares some of the
responsibility because the form he provides to Citizenship Judges invites
abbreviated reasons.
Conclusion
[42]
The appeal is allowed. The
Citizenship Judge’s decision is set aside and the matter is to be re-determined
by another citizenship judge.
[43]
I make no order of costs.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
decision of the Citizenship Judge granting citizenship is set aside.
2.
The
matter is referred back to a different citizenship judge for reconsideration.
3.
The
Respondent may file such further information or documents as she considers
necessary for the redetermination.
4.
I
do not make any award of costs.
“Leonard S. Mandamin”
Judge
Email this Content