Date: 20081125
Docket: T-601-08
Citation: 2008 FC 1314
Toronto, Ontario, November 25, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
FENG LI HUANG
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Minister appeals the decision of Citizenship Judge Allaire, dated February 18,
2008, approving the respondent’s application for Canadian citizenship. I
indicated at the hearing that this appeal would be allowed; these are my
reasons for that result.
[2]
First,
Citizenship Judge Allaire erred in law in providing no reasons for his
decision to approve the application for citizenship. This is an error of law.
Section 14(2) of the Citizenship Act, R.S.C. 1985, c. C-29, requires
that a citizenship judge provide reasons for his determination approving or
refusing to approve an application for citizenship. It provides as follows:
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(2) Forthwith after making a determination
under subsection (1) in respect of an application referred to therein but
subject to section 15, the citizenship judge shall approve or not approve the
application in accordance with his determination, notify the Minister
accordingly and provide the Minister with the reasons therefor.
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(2)
Aussitôt après avoir statué sur la demande visée au paragraphe (1), le juge
de la citoyenneté, sous réserve de l’article 15, approuve ou rejette la
demande selon qu’il conclut ou non à la conformité de celle-ci et transmet sa
décision motivée au ministre.
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[3]
In
this case, the Citizenship Judge merely signed a standard form entitled “Notice
to the Minister of the Decision of the Citizenship Judge” on which he checked
the box indicating that the application was approved. In my view a form that
provides notice of the decision reached, without more, cannot be said to
“provide the Minister with the reasons” for the decision, especially in the
facts of this case as are set out below.
[4]
The
form indicates that the respondent had a physical presence in Canada for 1,104
days. It is impossible on the record to arrive at that calculation and I
therefore find it to be an erroneous finding of fact made by the Citizenship
Judge in a perverse or capricious manner or without regard for the material
before him as described in section 18.1(4) of the Federal Courts Act.
[5]
The
record before the Citizenship Judge showed the following information regarding
the respondent’s absences from Canada.
(a) In his
application dated October 1, 2005, the respondent attested that he was absent
for 354 days. This would mean that he was physically present in Canada for 1,106
days.
(b)
Subsequently,
on July 24, 2006, the respondent declared an additional 39 days of absence. This
would mean that he was absent for 393 days and physically present in Canada for
only 1067 days, less than the 1095 day minimum required by the Act.
(c)
The
respondent submitted a Residence Questionnaire on November 7, 2006, which lists
only 308 absences from Canada – less than any of the previous
declarations. Further, the dates of some of the absences differ from those previously
provided.
(d)
Lastly,
the respondent submitted his passport which indicated further lengthy absences
from Canada that had not
been previously disclosed.
[6]
It
is impossible to ascertain what evidence was accepted by the Citizenship Judge,
what was rejected, or even if he examined the evidence placed before him as to
absences from Canada.
[7]
The
Minister calculates that the respondent has been absent from Canada for a total
of 928 days in the requisite four-year period. In my view, that is a
reasonable calculation of his absences based on the materials filed by the
respondent. Because the Citizenship Judge provided no reasons for his
determination to approve the application for citizenship, it is impossible to
ascertain which of the three tests he used in determining that the respondent
met the residency requirements of the Act. Failure to specify the test used is
an error of law: See Lam v. Canada (Minister of
Citizenship and Immigration) (1999), 164 F.T.R. 177 (T.D.).
[8]
Furthermore,
given the respondent’s very lengthy absences from Canada, it is not at all
certain that he ever established residency in Canada as is required under the
Act: See Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.). Again, there is
no evidence that the Citizenship Judge turned his mind to this question.
[9]
For
all of these reasons this appeal is allowed and the decision of Citizenship
Allaire is set aside.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the appeal is
allowed and the decision of Citizenship Judge Allaire dated February 18, 2008,
approving the respondent’s application for Canadian citizenship is set aside.
"Russel
W. Zinn"
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