Date: 20080229
Docket: T-2132-06
Citation: 2008 FC 275
Vancouver, British Columbia, February
29, 2008
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Applicant
and
Xiao
Kui LI
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
On October 5, 2006, a Citizenship Judge approved Xiao Kui
Li’s (the Respondent) application for citizenship (the Decision). The Minister
of Citizenship and Immigration (the Applicant) has appealed the Decision
under subsection 14(5) of the Citizenship
Act,
R.S.C. 1985, c. C-29, (the Act) on two grounds: First, that the Judge
failed to provide the Minister with reasons for the Decision; and second, that
the Judge failed to identify and apply any test for residency in his decision.
The Applicant seeks an Order to set aside the Decision of the Citizenship
Judge.
[2]
The Respondent failed
to appear at the hearing of this application. The record establishes that the
Respondent was personally served with the Notice of Application and did not file
an appearance. Notwithstanding the Respondent’s failure to file an appearance,
notice of the hearing was given to the Respondent in accordance with the Federal
Courts Rules. I was therefore satisfied that the hearing could proceed in
the absence of the Respondent.
[3]
The Applicant
contends that the Respondent had not provided sufficient documentary evidence
to show that she had been in Canada for the requisite 1095 days prescribed
under the Act during the relevant three-year period, namely September 2,
1999 to September 3, 2003. The Respondent was absent from Canada during the relevant period for 355 days. She spent this
time essentially working in the United
States. The Applicant
argues that the Respondent’s own evidence indicates that she had applied for and
received landing in the United
States during the relevant
period. Her stated reason for leaving Canada on September 1, 2003, was to permanently
reside in the United States. The record further establishes that the
Respondent became a permanent resident of the United States
on October 24, 2002. The Applicant contends that the Respondent failed to
provide sufficient documentation evidencing her continued residence in Canada.
[4]
On July 15, 2005, the
Respondent was interviewed by a Citizenship Officer. Following the interview,
the Officer was not convinced the Respondent’s evidence showed an on-going
presence in Canada and concluded that her ties to the United States are stronger. The Officer further
concluded that the Respondent had not accurately declared all of her absences
from Canada in the relevant period. The Officer
referred the Respondent for a hearing with the Citizenship Judge to determine
if she had satisfied the residency requirements of the Act.
[5]
The Citizenship Judge
approved the Respondent’s application without providing any reasons for the
Decision. The requirement to provide reasons to the Minister is found in
subsection 14(2) of the Act, which states:
|
14. (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.
|
14. (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.
|
[6]
The Act imposes a
statutory obligation on citizenship judges to provide reasons for their
decisions. The reasons must be sufficient to enable the appeal court to
discharge its appellate function. The jurisprudence has established that a
citizenship judge commits a reviewable error by failing to provide sufficient
reasons for a decision. See: Seiffert v. Canada (M.C.I.), [2005] F.C. J. No. 1326, at para. 9 and
Ahmed v. Canada (M.C.I.), [2002] F.C.J. No. 1415, at para. 12.
[7]
In the instant case, the
Notice of the Decision to the Minister, under the heading “Reasons”, is left entirely
blank. Since there are no other statements or endorsements which explain the
Citizenship Judge’s thought process, I am left to conclude that the Judge
failed to discharge his duty under subsection 14(2) of the Act. In my view, the
Citizenship Judge committed a reviewable error by not providing reasons for
having approved the Respondent’s application to the Minister. In the
circumstances of this case, and given the concerns raised by the Citizenship Officer
who conducted the interview of the Respondent, reasons should have been
provided describing the documents submitted by the Respondent and their impact
on the Decision. The reasons should have also indicated the residency test the
Judge used and explained why he determined that the residency requirements in
section 5 of the Act had been met.
[8]
For the above reasons, the appeal will be
allowed. The Decision will be set aside and the matter referred back for
reconsideration before a different citizenship judge to be decided in
accordance with these reasons.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that, for the above stated reasons, the appeal
is allowed. The Decision is set aside and the matter is referred back for
reconsideration before a different citizenship judge to be decided in
accordance with these reasons.
"Edmond P. Blanchard"
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