Date:
20120731
Docket:
T-75-12
Citation:
2012 FC 946
Ottawa, Ontario,
July 31, 2012
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
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IONELA FULGA-TUZLUCHI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
Ms.
Fulga-Tuzluchi’s application for citizenship was rejected because the
citizenship judge was not satisfied that she met the residency requirement of
the Citizenship Act. This is her appeal from that decision.
[2]
Section
5(1)(c) of the Act requires that an applicant for citizenship must, among other
things, have resided in Canada for three of the four years immediately
preceding the application, in other words for 1,095 days. Ms. Fulga-Tuzluchi
submitted that she was here for the entire four years, save for one one-week
vacation.
[3]
The
citizenship agent who vetted the application wrote to the citizenship judge to
express her concerns with respect to Ms. Fulga-Tuzluchi’s presence in Canada during the four years preceding her application, which was filed in August 2008. She
was concerned that she had not provided copy of her passports for the entire
period in question, that her allegations were not supported by the family and
professional ties she claimed she had and that:
[…] les séjours à l’extérieur du Canada ne peuvent
donc être entièrement corroborés par rapport à ce qu’ils déclarent.
[4]
When
Ms. Fulga-Tuzluchi
appeared before the citizenship judge she says that in addition to the
documents in her application file, she had other documents in hand. The
citizenship judge looked at them but did not take copy. He said he needed more
evidence, and gave her a questionnaire to fill out.
[5]
According
to Ms. Fulga-Tuzluchi,
she was given several months to provide this information. However, while she
was amassing evidence, the citizenship judge rejected her application, giving
rise to the submission that procedural fairness was not observed, more
particularly in that the citizenship judge reached his decision on an
incomplete record.
[6]
There
is no transcript of the hearing before the citizenship judge. We have two
documents emanating from him. On 14 November 2011, he wrote to the applicant to
say that her application was not approved because she did not meet the
residency requirements, in that she had not accumulated at least three years of
residence in Canada within the four years immediately preceding her
application.
[7]
He
said:
In
order to determine whether you meet the residence requirements, additional
documentation was requested from you. At your hearing, I also requested
additional documents from you since I was not satisfied with those already
submitted, but none was received. Unfortunately, the documents that you
submitted were, in my opinion, not satisfactory proof of residence in Canada. I have come therefore to the conclusion that you did not meet the residence
requirement as defined in paragraph 5(1)(c) of the Citizenship Act.
[8]
In
addition, he gave a notice to the Minister which essentially is to the same
effect, except therein he stated that he had heard the matter 9 August 2011 and
had given her until 30 August 2011 to provide further documentation.
GROUNDS OF APPEAL
[9]
In
addition to an allegation of procedural unfairness, Ms. Fulga-Tuzluchi submits
that the decision in unreasonable:
a. based on the
material in the record prior to the hearing before the citizenship judge;
b. if not, then
based on the material shown to the citizenship judge at the hearing; or
c. if not, then
based on the material now before this Court, which was not before the
citizenship judge when he made his determination.
DECISION
[10]
It
is not necessary for me to reach a decision on the reasonableness or fairness
issues, as I shall be granting this appeal because the citizenship judge failed
to provide reasons. Section 14(3) of the Act requires the citizenship judge who
does not approve an application to notify the applicant “of his decision, of
the reasons therefore and of the right to appeal.”
[11]
In
this case, the citizenship judge made his determination, but gave no reasons to
support that determination. As stated in Canada (Minister of
Citizenship and Immigration) v Jeizan, 2010 FC 323, 386 FTR 1, [2010] FCJ
No 373 (QL), at paragraph 17:
Reasons for decisions are adequate when they are clear, precise
and intelligible and when they state why the decision was reached. Adequate
reasons show a grasp of the issues raised by the evidence, allow the individual
to understand why the decision was made and allow the reviewing court to assess
the validity of the decision: see Lake v. Canada (Minister of Justice),
2008 SCC 23, [2008] S.C.J. No. 23 at para. 46; Mehterian
v. Canada (Minister of Employment and Immigration), [1992] F.C.J.
No. 545 (F.C.A.); VIA Rail Canada Inc. v. National Transportation Agency,
[2001] 2 F.C. 25 (F.C.A.), [2001] 2 F.C. 25 (C.A.), at para. 22; Arastu, above, at paras. 35-36.
[12]
In
my opinion no reasons were given at all. Even if the paragraph I quoted from
the citizenship judge’s decision constitutes reasons, then they are clearly
inadequate.
[13]
The
application shall be referred back to another citizenship judge for
re-determination de novo. Ms. Fulga-Tuzluchi should certainly
provide that citizenship judge with the material filed in this court but not
with the first citizenship judge.
[14]
There
shall be no order as to costs.
[15]
This
appeal was heard the same day as the appeal in Canada (Minister of
Citizenship and Immigration) v Hannoush, 2012 FC 945. In Hannoush,
the Minister’s appeal succeeded because the citizenship judge did not provide
reasons as required by the Act. The same holds true in this case. There can be
no double standard based on whether the appellant is the Minister or the
citizenship applicant.
ORDER
FOR
REASONS GIVEN;
THIS
COURT ORDERS that
1.
The
appeal of Ms. Fulga-Tuzluchi is allowed.
2.
The
application for citizenship is referred back to another citizenship judge for
re-determination de novo.
3.
The
whole without costs.
“Sean Harrington”
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