Date: 20091023
Docket: T-419-09
Citation: 2009 FC 1085
Toronto, Ontario, October 23, 2009
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
SHING TIMOTHY WONG
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an appeal by the
Minister of Citizenship and Immigration (the “Minister”) pursuant to subsection
14(5) of the Citizenship Act, R.S.C. 1985, c. C-29, from the decision of
a citizenship judge dated January 21, 2009, approving the application for
Canadian citizenship made by Shing Timothy Wong (the “Respondent”).
BACKGROUND FACTS
[2]
The
Respondent was born in Hong Kong and is a citizen of the United Kingdom. He came to Canada in 1996 with his wife and two
children and became a permanent resident.
[3]
The
Respondent’s family bought a house, registered in the Respondent’s wife’s name,
in the Toronto region in 1996 and has lived
there ever since. The Respondent’s wife and children eventually became Canadian
citizens.
[4]
The
Respondent travelled extensively, accumulating only 775 days in Canada out of 1460 in the relevant
period (from June 2001 to June 2005). Most of the Respondent’s trips were to Hong Kong, for business - or work-related
purposes. Some were to the United
States for
tourism. At least some, though it is not quite clear how many, were to
accompany one of his sons, who is suffers from some mental illness, for
treatment at a clinic in Hong Kong.
[5]
The
Respondent applied for Canadian citizenship on June 15, 2005. That application
was denied on May 13, 2007. While the reasons for the denial of the
applications are somewhat confused, the citizenship judge seems to have based
her decision on the Respondent’s multiple and lengthy absences from Canada. The Respondent appealed.
[6]
In Wong
v. Canada (Minister of Citizenship and
Immigration),
2008 FC 731 [Wong I], Justice Michael Phelan allowed the Respondent’s
appeal. Phelan J. held that the citizenship judge failed to consider the Respondent’s
residence in Canada prior to the material period;
confused the various residence tests; and, most importantly, failed to consider
the quality of the Respondent’s connection with Canada.
[7]
The
Respondent’s application was then remitted to the citizenship judge, who
approved it. The Minister is now appealing this decision.
DECISION UNDER REVIEW
[8]
The citizenship
judge’s decision consists of one hand-written paragraph on the “Notice to the
Minister” form; very nearly the same paragraph is reproduced on the “Note to
File” form. The paragraph in the “Note to File” form reads:
After personal interview and reviewing
the requested documents i.e. Hong Kong record of movement, CRA Notice of
Assessments (sic), Bank statements, oral submissions, Family presence in
Canada for past 13 years, Canadian citizen, reason for travel being his son’s
treatment for autism, having declared all absences as per application and res.
questionnaire, I am satisfied that client has set up residence in Canada and
has maintained it. Approved. [My italics; the italicized words do not appear on
the “Notice to the Minister” form]
[9]
The
citizenship judge also wrote down some facts about the Respondent in point form
on another “Note to File”.
ISSUES
[10]
This
appeal raises three main issues:
1) Is
the issue of the Respondent’s residency res judicata?
2) Did
Judge Gill provide adequate reasons for his decision?
3) Did
Judge Gill err in finding that the Respondent met the residence requirement of
the Citizenship Act?
ANALYSIS
Res Judicata
[11]
The
Respondent submits that the issue of his residency is res judicata
because Phelan J. “decided as a matter of fact that the Applicant and his
family had established residence in Canada and has [sic] maintained residence
in Canada.”
[12]
In fact,
Phelan J. decided no such thing. At par. 20 of his reasons in Wong I, supra,
Phelan J. wrote that:
[t]here was sufficient material in the record to raise the
issue of pre-existing residence but the Citizenship Judge failed to embark on
that enquiry. … This is not to suggest that there are no problems with the
documents on this issue or certain inconsistencies in the record. However,
in my view it was the obligation of the Citizenship Judge to assess whether
residency had been established, particularly where the Applicant and his family
had been in Canada for 12 years, owning their own home, where members of the
family had become citizens of Canada and to where the Applicant, having traveled
from Canada to other points, including Hong Kong, always returned. [Emphasis mine]
[13]
Phelan J.
decided that the citizenship judge had a duty to determine “whether residency
had been established.” He certainly did not find it as a fact that it was. The
Respondent’s position on this issue is without merit.
Adequacy of Reasons
[14]
Subsection
14(2) of the Citizenship Act provides that a citizenship judge shall “provide the Minister with the
reasons” for his decision to grant or deny an application for citizenship made
by a permanent resident.
[15]
The Minister
argues that the citizenship judge failed to discharge this duty by providing
reasons that were “sparse, imprecise and unintelligible.”
[16]
In
particular, the Minister submits that the citizenship judge failed to indicate
which residency test he applied, and addressed neither the relevant legal
factors nor the issues raised by the evidence. I agree with the Minister.
[17]
In a
recent case, Canada
(Minister of Citizenship and Immigration) v. Mahmoud, 2009 FC 57 [Mahmoud], at par. 6,
Justice Roger Hughes noted that, because the Minister – or, I would add, a
citizenship applicant – has no remedy other than an appeal to this Court, and
citizenship must be granted in the event of a positive recommendation by a
citizenship judge, “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.”
[18]
Needless to
say, the citizenship judge’s reasons ought to speak for themselves. The fact
that the Respondent has felt the need to explain the citizenship judge’s reasoning
in an affidavit is, in my view, a clear indication that the latter’s reasons
were inadequate.
[19]
The
Respondent argues that the citizenship judge applied the test developed by
Justice Reed in Re
Koo, [1993] 1
F.C. 286, (1992) 19 I.L.R. (2d) 1. But any references to it are well hidden in the citizenship judge’s reasons. It is noteworthy that
he did not use the existing form listing the six questions of that test and
providing space for an answer to each.
[20]
The
Minister – or, in other cases, applicants – should not have to guess why a
citizenship application is granted or denied. Although the form used by the citizenship judge left very little space for
providing reasons, like Hughes J. at par. 19 in Mahmoud, supra, stated
that:
I find that the requirement that a citizenship judge provide
clear and adequate reasons must prevail over any apparent constraint imposed by
the 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. Citizenship and Immigration Canada should give
immediate attention to improving the form.
[21]
The short
paragraph provided by the
citizenship judge does
not make clear which test he applied, what questions he asked, and barely
mentions some evidence that he took into account.
The Residency Requirement:
[22]
Given the
conclusion to which I come on the issue of the adequacy of reasons, it is
unnecessary for me to determine the issue of the residency requirement.
CONCLUSION
[23]
The
situation is most unfortunate for the Respondent, who will now have to undergo,
because of poor work by two citizenship judges, a third determination of an
application that has been pending for more than four and a half years. But the
Minister is entitled to an explanation of a decision with which he disagrees,
just as the Respondent was when Phelan J. quashed the first decision on his
application in Wong I, supra.
[24]
In
oral argument, the Respondent urged the Court to use its appeal powers to find
that he meets the residence requirement of the Citizenship Act and is
therefore entitled to Canadian citizenship, rather than remit the matter for
re-determination by another citizenship judge. My colleague Justice Douglas
Campbell did so in Seiffert v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1072, 277
F.T.R. 253. However, this case is not one where such a finding would be appropriate.
[25]
Since paragraph
300(c) of the Federal Courts Rules, SOR/98-106, provides that appeals
from decisions of citizenship judges are to be heard as if they were
applications for judicial review, this Court will make use of its appeal powers
and substitute its own decision for that of a citizenship judge in exceptional
cases. Seiffert, supra, was such a case, as Campbell J. found, at par.
22, that “there
[was] ample evidence on the record … that residency in Canada had been established well before the
citizenship applications were filed.” [My emphasis]
[26]
This case is
different, since, as Phelan J. found in Wong I, supra, at par.
20, while “[t]here
was sufficient material in the record to raise the issue of pre-existing
residence … This is not to suggest that there are no problems with the
documents on this issue or certain inconsistencies in the record.” The issue is thus not clear cut, and
will have to be considered by a citizenship judge, who should provide a careful
analysis of the facts before making his decision.
[27]
For these
reasons, the appeal is allowed and the matter remitted to a different citizenship
judge for reconsideration.
[28]
Although
the parties have each requested costs, in my view this case is not one where an
award of costs would be appropriate.
JUDGMENT
THIS COURT
ORDERS that the appeal be allowed and the matter remitted to
a different citizenship judge for reconsideration, without costs.
“Danièle Tremblay-Lamer”
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