Date: 20091204
Docket: T-628-09
Citation: 2009 FC 1244
Ottawa, Ontario, December 4, 2009
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
THI
NHU NGUYEN
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant, Thi Nhu Nguyen, appeals the July 14, 2008 decision of a Citizenship Judge pursuant to s.14(5)(b)
of the Citizenship Act, R.S.C. 1985, c. C-29. The Citizenship Judge
denied her application for citizenship because of insufficient documentation to
establish she had been resident in Canada for the required
three years during the four years preceding her application.
I. Background
[2]
Thi Nhu Nguyen was born
in Vietnam. She moved to Canada in 1993 and she applied for citizenship on July 12, 2007. She attended
a citizenship hearing before Judge Philip Gaynor on May 21, 2008. The record of
her hearing as set out in the Notice to the Minister of the Decision of the
Citizenship Judge (“Notice to the Minister”) on May 21, 2008 indicates that Ms.
Nguyen satisfied all requirements for citizenship except the residence
requirement in paragraph 5(1)(c) of the Act.
[3]
In her application Ms.
Nguyen stated she was in Canada all 1460 days of the relevant four year period
for citizenship; that is to say, she claims no absences from Canada during that time. At her citizenship hearing on May
21, the Citizenship Judge requested documentary evidence supporting the claim
she never left Canada. Here the stories diverge.
[4]
Ms. Nguyen says the Citizenship
Judge asked to see her passport and her record of landing. She says she rushed
home to retrieve the documents, returned that same day, and met again with the
Citizenship Judge to show him the requested documents. She says he examined
them and she believed he was satisfied with her evidence. He did not make any
copies nor did she leave copies of the documents with the citizenship registry.
[5]
On July 14, 2009 the
Citizenship Judge recorded that Ms. Nguyen had not complied with the documentation
request and he was thus unable to determine her residency in Canada. For that reason he denied Ms. Nguyen’s application
for citizenship.
II. Decision
under Appeal
[6]
The Notice to the
Minister is a form with two parts.
[7]
The first portion of
the Notice to the Minister records the dates of landing and filing for
citizenship. It also records whether the applicant has satisfied the
requirements of citizenship and is not disqualified from a grant of citizenship.
The Notice to the Minister in this case indicates Ms. Nguyen satisfied all
requirements except the residency requirement. Ms. Nguyen attested the forgoing
by signing the Notice at the conclusion of the citizenship hearing.
[8]
The second portion of
the Notice to the Minister form records the Citizenship Judge’s decision and
provides for brief reasons. On July 14, 2008, the Citizenship Judge wrote in
the Notice:
The applicant
appeared before me on 21st May re-hearing. At that time I asked the
applicant for supporting documents. The applicant was given 30 days to comply
with any request. As of July 9th/08 the applicant has not complied. I
am unable to determine her residency in Canada during the relevant period. Because of above reason I am unable to
approve the [sic] applicants application for citizenship.
[9]
In his February 23, 2009 letter advising Ms. Nguyen of his decision, the Citizenship
Judge stated:
(1)
You became
a landed immigrant of Canada on June 01, 1993.
(2)
You
applied for Canadian citizenship on July 12, 2007.
(3)
The
relevant four year period, to establish residence in your case, is from July 12, 2007 to July 12, 2003, for a total of 1,460.
(4)
You
claimed “0” absences from Canada, during the relevant period.
[10]
The Citizenship Judge then
identified the issue as whether Ms. Nguyen had accumulated at least three years
(1,095 days) of residence within the four years immediately preceding the date
of her application for citizenship.
[11]
The
Citizenship Judge decided:
In the relevant period, you accumulated
1,460 days. You declared “0” absences from Canada, on your application form.
As a consequence, in order to verify your
claim, you were given at the hearing a list of supporting documentation, to
submit within thirty (30) days. This information was to be returned to our office on or
before June 21, 2008. as of July 09, 2008, the information was not received. (emphasis
added)
…
Regrettably, you have neither complied
with, nor offered an explanation for your non-compliance to a lawful
requirement. As a result, I have reached the conclusion there is a reasonable
doubt regarding your statements of absence from Canada as well as presence in
Canada.
III. Analysis
[12]
In
support of her appeal, Ms. Nguyen filed an affidavit which recounted her
version of the request for documentation, her obtaining the documents requested,
her subsequent meeting with the Citizenship Judge and his review of her documents.
Her affidavit appends the following documents:
a.
Passport
no. DQ0010920 issued by Embassy of Vietnam on January 25, 1999 which expired
on January 24, 2004
b.
Letter
dated April 3,
2009 from the
Embassy of Vietnam confirming that she did not apply for a new passport until January 29, 2008
c.
New Passport
no. N11075158 issued January
25, 2009 with
expiry date of January
29, 2018
d.
Record of
Landing on June
1, 1993
[13]
At
the appeal hearing, Ms. Nguyen also provided an additional document, the
Request for Supporting Documentation (“Request”), dated May 21, 2008. This
document states in part:
RE: REQUEST FOR SUPPORTING
DOCUMENTATION
In order to assess your residence, I
am requesting from you the following documentation.
This additional documentation should
be mailed directly to Nancy Afonso, at the above address, within 10 days of
this notice, no later than May 30th/08. (emphasis in original)
Please note that failure to comply
with this request may result in a non-approval of your application for Canadian
citizenship.
COPY OF LANDING PASSPORT ALL PAGES
COPY OF LANDING PAPER IMMIGR**
(intelligible lettering in original)
This Request was
dated May 21, 2008 and signed by both the applicant and the Citizenship Judge. It
is not contained in the Record before this Court but counsel for Ms. Nguyen and
the Respondent agree it should be part of the Record. Given this agreement and
the fact the Request was signed by both Ms. Nguyen and the Citizenship Judge, I
will consider this Request document.
[14]
Clearly
the letter dated April 3, 2009 from the Embassy of Vietnam and the
Passport no. N11075158 issued January 25, 2009 are documents that were issued
after May 21, 2008 and could not have been shown to the Citizenship Judge that
day. The only evidence that may be considered on appeal is the evidence that
was before the Citizenship Judge. Zhao v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1923 at para. 35. Since
the foregoing documents were not before the Citizenship Judge, I will disregard
them.
[15]
On
the other hand, Ms. Nguyen’s 1999 passport issued by the Government of Vietnam and
her Record of Landing on June 1, 1993 could have been the documents she declares
she showed the Citizenship Judge after the citizenship hearing.
[16]
The Respondent submits
the Appellant’s case lacks an “air of reality”. To establish this, the Minister
asks this court to assume what are the day to day practices, physical layouts,
protocols and procedures of its offices. There is no evidence to support any
finding as to what procedures a citizenship judge uses to discharge his duties
under the Act and nothing to tell the Court how efficient the administrative
procedures are. In the absence of such evidence I do not consider Ms. Nguyen’s
account lacks an “air of reality”.
[17]
The Respondent also
argues the document handling procedures of the citizenship registry are to be
presumed to be complete and regular. The Respondent refers to the affidavit of
Ms. Ann Lai, Manager of the Citizenship CIC office in Scarborough which states that the Global Case Management System, Citizenship and
Immigration Canada’s operating system used for processing citizenship
applications, state the documents requested had not been received as of July 9,
2009.
Standard of Proof
[18]
Justice Rothstein wrote
in F.H. v. McDougall, 2008 SCC 53 at paragraph 40: “Like the House of Lords, I think
it is time to say, once and for all in Canada, that there is only one civil
standard of proof at common law and that is proof on a balance of
probabilities.”
[19]
Ms. Nguyen bears the
burden of proving her case on the balance of probabilities. Her affidavit
together with the two acceptable appendices, the 1999 passport and the Record
of Landing, present that she attended and showed the documents requested to the
Citizenship Judge on May 21, 2008. She was not cross-examined on her affidavit
and it stands unchallenged.
[20]
The Respondent submits
the Record and the Citizenship Judge’s decision establish the requested
documents were not provided.
[21]
When considering the
essence of the balance of probabilities, Lord Denning wrote in Miller v.
Minister of Pension, [1947] 2 All E.R. 372, at 374 (K.B.): “If the evidence
is such that the tribunal can say: ‘we think it more probable than not’, the
burden is discharged, but if the probabilities are equal, than it is not.”
[22]
At this point the two
factual positions are equal and opposite. If so, Ms. Nguyen’s appeal would fail.
In my view, the balance is changed by the inclusion of the Request for
Supporting Documentation as part of the Record. The Request has the effect of
enhancing Ms. Nguyen’s credibility and undermining the Respondent’s position.
[23]
The
Request required Ms. Nguyen to provide a copy of her landing record and landing
passport with all pages. Importantly, the Request corresponds to Ms. Nguyen’s
account of events in regards to time and specific documents requested. The
Request was the same day as that of the citizenship hearing. It specified
Landing Passport with “all pages” and Landing Record.
[24]
Ms.
Nguyen submits the significance of the request for her passport is that even if
a visit to another country might not be noted on a passport, return to Canada would be
recorded in the passport. The passport with all its pages blank therefore could
be a document that may confirm her assertion of zero absences from Canada.
[25]
The
fact that the Request, an important step in the documentary process, is missing
from the official record is indicative that the Record is not always complete
and regular. The Request should have been on the Record but it was not.
[26]
I
find Ms. Nguyen has proven her version of events on the civil standard of a
balance of probabilities. She retrieved her documents and returned to show them
to the Citizenship Judge. The error was that she did not file copies; she
thought presenting the documents for viewing was sufficient. Nevertheless she complied
with the Request in a substantive manner. Her appeal therefore succeeds.
Remedies
[27]
I
turn now to the question of a remedy. Ms. Nguyen seeks in part as remedies:
a.
An
Order granting the applicant the Canadian Citizenship
b.
A
Declaration that the applicant meets all the requirements of the Citizenship
Act and the Regulations.
[28]
The
Respondent submits the Court may not grant citizenship for several reasons. First,
the Federal Courts jurisdiction to issue final remedies against federal boards,
commissions and tribunals is mentioned in sections 18(1) and 18.3(3) of the Federal
Court Act R.S.C. 1985, c. F-7 (the “FCA”) and these remedies do not
include the granting of citizenship. Second, the review of decisions of citizenship
judges by way of an “appeal” does not change the remedies the Federal Court may
grant under section 18.1 FCA. Citizenship appeals are not trials de
novo. Canada (Minister of
Citizenship and Immigration) v. Tovbin, (2000) FCJ No. 527 at
para. 43 (“Tovbin”). Third, the Federal Court’s equitable jurisdiction
may not be used to expand the remedies granted under the FCA.
[29]
Notwithstanding
the Respondent’s well reasoned argument, the Federal Court’s jurisdiction for
hearing appeals, emanates from section 14(5) of the Citizenship Act. Further,
while section 21 of the Federal
Courts Act confers on the Federal Court exclusive jurisdiction, it does not
alter the source or nature of the right of appeal under the Citizenship Act.
[30]
In Canada (Minister of Citizenship and
Immigration) v. Chiu, [1999] F.C.J. No. 896 Justice Pinard wrote in the context of an appeal by the Minister:
… an appeal under subsection 14(5)
of the Citizenship Act is no longer an appeal de novo, but it remains an
appeal which, by virtue of the Rules, is dealt with procedurally the same way
an application for judicial review is dealt with. Such an appeal, therefore, is
not an application for judicial review within the meaning of section 18.1 of
the Federal Court Act. Accordingly, this Court is not limited by subsection
18.1(3) of that Act and may simply quash a decision of a Citizenship judge if,
like in the present case, it does not meet the applicable test of correctness.
[31]
An
appeal is a review of a decision by a superior court to test the soundness of
the decision and it may involve reconsideration of the decision in question. Dukelow
Dictionary of Canadian Law (3d) 2004. An appeal may include a
traditional appeal based on the record below or a trial de novo which
essentially envisages a new trial on existing or new evidence. Tovbin makes
it clear citizenship appeals exclude trials de novo. However, the FCA
does not amend the Citizenship Act to convert an appeal into a judicial
review. Remedies in a citizenship appeal may involve dismissing the appeal,
giving the award that should have been given or ordering a new hearing. In
appropriate circumstances, a grant of citizenship may result of the Federal
Court appeal hearing.
[32]
Nevertheless,
the Respondent’s arguments in respect of remedies have merit. The Citizenship
Court is not as formal as a court. In
citizenship cases the highest appellate court is the Federal Court. Upon a
decision of the highest appellate court res judicata would normally mean
the end of an applicant’s options. In contrast, applicants for citizenship are free
to re-apply anytime.
[33]
The
Citizenship hearing is a less formal process as discussed in Canada (The
Minister of Citizenship and Immigration) v. Mahmoud, 2009 FC 57 at para. 4
and as evidenced by Ms. Nguyen’s affidavit. The documentation is assessed by a
citizenship judge in light of the outcome of the citizenship hearing and his or
her specialized knowledge. The record before the Federal Court does not
constitute the entire record since the hearing itself is more in the nature of
an interview than a court hearing. The quality of the evidence on the Record
necessarily impacts on the remedies available.
[34]
Ms.
Nguyen insists the passport she provided covers the period 1999 to 2004. There
is no evidence concerning Immigration procedure recording re-entry dates into Canada in passports.
Nor is there any admissible evidence concerning her assertion that she did not
have a valid Vietnamese passport between years 2004 to 2009 and therefore could
not travel out of Canada during that period. The Citizenship Judge, with his
specialized knowledge and benefit of the hearing may assess the evidence before
him. I am not in a position to do so.
V. Conclusion
[35]
Since
the Notice to the Minister records that Ms. Nguyen satisfied all the requirements
for citizenship except documentation establishing the required residency, I
consider the appropriate remedy is to set aside the Citizenship Judge’s decision
denying citizenship and refer the matter back to the same Citizenship Judge
with respect to the residency question alone.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
decision of the Citizenship Judge denying citizenship is set aside.
2.
The
matter is referred back to the same Citizenship Judge for reconsideration of in
regard to residency only; if the Citizenship Judge is not available, another
citizenship judge may hear the matter.
3.
Ms.
Nguyen must file her residency documentation with the citizenship registry,
together with any additional documentation she chooses or may be required of
her.
4.
I
make no award of costs.
“Leonard
S. Mandamin”
Email this Content