Docket: T-1467-11
Citation: 2012 FC 348
Ottawa, Ontario, March 22, 2012
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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TEK SHIN WAN FOOK CHEUNG
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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 JUDGMENT AND
JUDGMENT
I. INTRODUCTION
[1]
The
Applicant was denied citizenship by a Citizenship Judge [Judge] who did not
state the basis of her decision other than that the Applicant did not meet the
residency requirements under section 5(1)(c) of the Citizenship Act,
RSC 1985, c C-29 [Act].
II. BACKGROUND
[2]
Mr.
Cheung, a citizen of Mauritius, became a permanent
resident on December 28, 2003 and applied for citizenship on December 27, 2007.
The relevant period for calculating residency is December 28, 2003 to December
27, 2007 [the Relevant Period.
[3]
The
Applicant is married and has three children. His wife and children are Canadian
citizens.
[4]
From
January 2004 to February 2005, the Applicant travelled back and forth between
Africa and Canada on business
for a Mauritian company. He was ultimately laid off and until February 2007 he
was either working in Canada or unemployed. He was outside of Canada for 15 days
during this period.
[5]
From
February 2007 to December 2007, the Applicant was on a temporary contract which
required him to work outside Canada. He was entitled to return to Canada every six to
eight weeks for two-four weeks at a time.
[6]
The
Applicant acknowledged that he was 223 days under the required time calculated
for residency.
[7]
As
part of the citizenship process, the Judge asked for additional documents
including tax assessments, employment letters stating last day of employment
and employment contracts. These were provided to the Judge.
[8]
In
her judgment, the Judge outlined the basic facts of the timing of the
application and time calculation for residency including the deficiency of 223
days. The Judge then stated that having received the documents and interviewed
the Applicant, she concluded that he did not meet the residency requirements.
In outlining her reasons for this conclusion, the Judge noted:
·
that
the Applicant went to work for a company one month after arriving in Canada;
·
inconsistencies
between the Applicant’s narrative and the documentation; and
·
inconsistencies
in employment history.
[9]
Having
then concluded that the testimony and documentary evidence were inconsistent
and insufficient, the Judge again held that she was not satisfied that the
Applicant had met the residency requirements. The Judge also concluded that
there were no special circumstances justifying a favourable recommendation for
a discretionary grant of citizenship.
III. ANALYSIS
[10]
The
record in this case does not raise an issue of pre-Relevant Period residency.
The Applicant left Canada within a month of arriving in Canada and
thereafter during the Relevant Period had a mixed lifestyle of time working in Canada and working
abroad.
[11]
Central
to this appeal is the Applicant’s submission that the Judge erred in failing to
explain which residency test she used. This Court has held that, as this issue
involves a question of law and procedural fairness, the applicable standard of
review is correctness (Johar v Canada (Minister of
Citizenship and Immigration), 2009 FC 1015 at para 20).
[12]
Associated
with this central issue is the Applicant’s submission that the Judge erred in
assessing whether he had met the residency requirement under the Act because
she mixed the factors of different tests together. This mixing has been held to
be an error of law subject to the correctness standard of review (El Ocla v Canada (Minister of
Citizenship and Immigration), 2011 FC 533 at para 14).
[13]
Because
of the basis of this Court’s decision, the Court will refrain from commenting
on whether the application of either of the two residency test paradigms
(qualitative and quantitative) was reasonable.
[14]
In
Vancouver International Airport Authority v Public Service Alliance of
Canada, 2010 FCA 158, the Federal Court of Appeal set out, fairly
comprehensively, the rationale for requiring reasons; one of which is to know
the basis upon which a decision rests. While Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland
Nurses], has clarified that adequacy of reasons is not a stand alone ground
of review, the Supreme Court of Canada confirmed that inadequate reasons goes
to the reasonableness of the decision.
[15]
In
this case, it is not possible to discern which test was used to deny the
application for citizenship. Clearly the Applicant failed on a quantitative
analysis since he was deficient of residency by 223 days.
[16]
The
Judge’s decision exhibited a mixing of factors relevant to one test with
factors relevant to the other. The documents requested by the Judge could have
been used for a qualitative analysis or for purposes of making a favourable
recommendation for a discretionary grant of citizenship. It is difficult,
however, to see how some of the documents requested were pertinent to a
quantitative analysis especially given the Applicant’s admission that he was
deficient in days of residency.
[17]
With
the Newfoundland Nurses decision, the Court has some form of obligation
to uphold a decision where it can. Where the Court could identify the approach
taken by the Judge, the Supreme Court of Canada has instructed courts to uphold
a decision if it is reasonable. In the current circumstances it is not possible
to discern the legal test which was applied and therefore this Court cannot
uphold the decision.
IV. CONCLUSION
[18]
Therefore,
for these reasons, the appeal is granted and the matter is referred back to a
different citizenship judge for a new determination.
JUDGMENT
THIS COURT’S
JUDGMENT is that the appeal is granted, and the
matter is to be referred back to a different citizenship judge.
“Michael
L. Phelan”
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