Date:
20121130
Docket:
T-283-12
Citation:
2012 FC 1403
Ottawa, Ontario,
November 30, 2012
PRESENT: The Honourable Mr.
Justice Phelan
BETWEEN:
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Applicant
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and
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JING LIU
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
appeal is brought by the Minister of Citizenship and Immigration [Minister]
from a decision of a Citizenship Judge [Judge] to approve the citizenship
application of Ms. Jing Liu.
II. BACKGROUND
[2]
The
Respondent is a citizen of New Zealand who became a permanent resident of Canada on April 17, 2005. She applied for citizenship on November 15, 2009. The parties
agree that the relevant period for calculation of the Respondent’s residency in
Canada is November 15, 2005 to November 15, 2009.
[3]
The
most significant factual detail of this case is the discrepancy between the
absences recorded in the request to renew permanent residency – 564; and 351
days’ absence recorded on her Residence Questionnaire – a difference of 213
days.
[4]
This
discrepancy was observed by the Judge as established by a handwritten note in
the Judge’s file – “can’t balance difference between PRC declaration & Cit.
App”.
[5]
The
Judge requested further documentation from the Respondent – ICES Traveller
History, Ministry of Health Claims and Record of Movement from China. Only the latter document was not supplied.
[6]
In
the Judge’s Notice to the Minister – The Decision of the Citizenship Judge, the
Judge simply states that the documentation “satisfied me on the balance of
probabilities the Applicant has satisfied the residency, and all of the other
requirements of the Act”.
III. ANALYSIS
[7]
The
prior jurisprudence emanating from the principle of Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, is that the residency requirement in a
citizenship application is a matter of mixed law and fact for which the
standard of review is reasonableness (Canada (Minister of Citizenship and
Immigration) v Jeizan, 2010 FC 323 at para 12, 386 FTR 1).
[8]
The
Applicant contends that the Judge failed to state which of the residency tests
he adopted. While there is no explicit statement, it is evident from the
decision that the Judge adopted the quantitative test.
[9]
With
respect to the adequacy of reasons, while Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708 [Newfoundland Nurses], has held that adequacy of
reasons is not a stand alone grounds for review, inadequate reasons go to the
root of “reasonableness” of a decision. The Court is, according to Newfoundland
Nurses, required to find support for a decision in the record where it can.
However, that does not mean the Court must guess as to the reasons or
substitute its reasons for those of the decision-maker.
[10]
The
problem with the decision under review is that the 200+ days gap is not
explained away – the Judge does not explain how he reconciled the very problem
he identified.
[11]
The
Respondent did an excellent job of explaining how the Judge could have
reconciled the gap but Respondent’s counsel is not the decision-maker. There
are real questions remaining about the 200+ days gap which render the decision
unreasonable.
[12]
In
overturning this decision, it would be unfair to expose the Respondent to the
vagaries of our residency test “lottery”. It is fairer to return this matter to
the same Judge for a redetermination of this case based upon the residency test
originally adopted by the Citizenship Judge.
IV. CONCLUSION
[13]
Therefore,
this appeal is granted upon the terms in the Order.
JUDGMENT
THIS
COURT’S JUDGMENT is that the appeal is allowed and the matter is
remitted to the same Citizenship Judge for reconsideration in accordance with
the Reasons for Judgment, without costs.
“Michael L. Phelan”
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