Date: 20080414
Docket: T-1350-07
Citation: 2008 FC 476
Vancouver,
British Columbia, April 14, 2008
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
HENRY
RIZKY MAGKUSASONO
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Henry Rizky Mangkusasono applied for Canadian citizenship in October
2006. In 2007, a citizenship judge concluded that Mr. Mangkusasono had
satisfied the residency requirement of s. 5(1)(c) of the Citizenship Act, R.S.C. 1985,
c. C-29 (see Annex ”A” attached) and granted his application. The Minister
of Citizenship and Immigration appeals on the basis that the judge’s decision
was unreasonable and his reasons were inadequate. The Minister asks me to quash
the decision. I agree with the Minister and must, therefore, allow this appeal.
I.
Issues
- Were the judge’s reasons
inadequate?
- Was the judge’s decision
unreasonable?
II. Analysis
1.
Were the judge’s reasons inadequate?
(a) The
Residency Requirement
[2]
Applicants for Canadian citizenship must show that they were resident in
Canada for three out of the four years preceding their applications (Citizenship
Act, s. 5(1)(c)). They can meet this requirement by proving physical
presence in Canada for at least three years, or by showing that they have
established and maintained such strong ties to Canada that their absences can
still be counted in their favour, even though they have not been physically
present in Canada for the required three years: Canada (Minister of
Citizenship and Immigration) v. Nandre, 2003 FCT 650.
(b) Factual
Background
[3]
Mr. Mangkusasono was born in Jakarta, Indonesia in 1977. He came to Canada
as a high-school student in 1992 and later studied engineering at the University
of Toronto. His application for citizenship was filed on November 19, 2006. Therefore,
to meet the residency requirement, he had to show that he was physically
present for three out of the four years beginning on November 19, 2002, or that
he should be credited for his absences because he had established and
maintained a strong connection with Canada.
[4]
Mr. Mangkusasono was absent from Canada for various periods of time
during the relevant period. He visited friends and family outside Canada for
fairly short periods in 2003 and 2004, but was absent for long stretches in
2005 and 2006 when he was studying in Germany. He was physically present in Canada
for only 736 days and was absent for 713 days. This put him 359 days short of
the three-year requirement (being 1095 days).
[5]
To show that he had established his residence in Canada, Mr. Mangkusasono
submitted copies of his current and previous passports, a statement of his
investments in mutual funds, and a letter from Epilepsy Canada thanking him for
helping with a charity drive in 2004. An officer who screened his citizenship
application noted that there were pages missing from the copies of Mr. Mangkusasono’s
passports and that he had failed to provide any documentation showing his
residential or work history in Canada. The officer recommended that the file be
reviewed by a citizenship judge.
(c) The
Decision under Appeal
[6]
The citizenship judge interviewed Mr. Mangkusasono and then concluded:
After personal interview and
receiving backup data, I am satisfied that client meets the residency
requirement. In Canada since 1992, went to Germany to study Masters of
Engineering in Petroleum Engineering. Good knowledge about Canada.
[7]
It appears, therefore, that Mr. Mangkusasono supplemented his
application with further “data”. However, there is nothing in the record
indicating what information Mr. Mangkusasono had provided.
[8]
The Minister argues that the judge’s reasons were inadequate.
(d) The Duty to Give Reasons
Having considered all the
testimony in this case, and reminding myself of the burden on the Crown and the
credibility of witnesses, and how this is to be assessed, I find the defendant
guilty as charged.
2.
Was the judge’s decision unreasonable?
[12]
As explained, it is impossible to determine whether the judge’s decision
was reasonable given the inadequacy of the reasons and the absence of
information in the record supporting it. As Justice Binnie noted in Sheppard,
it will sometimes be possible to discern the decision-maker’s analysis and,
therefore, to assess its reasonableness based on the record, even if the
written reasons are themselves deficient. The Federal Court of Appeal also acknowledged
this possibility in Doucette v. Canada (Minister of Human
Resources Development), 2004 FCA 292. There, Justice Marc Nadon found that
the “laconic” reasons of the Pension Appeal Board were adequate in the
circumstances given that they relied on a medical report that was included in
the record. However, this is not possible in the circumstances before me.
[13]
Accordingly, I must quash the decision of the citizenship judge. Counsel
for Mr. Mangkusasono asked me to send the matter back to the citizenship judge
to prepare proper reasons, if I were to conclude that the decision could not
stand. However, given the absence of a complete record in this case, I do not
believe that would be an appropriate outcome.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1. The appeal is allowed. The
decision of the citizenship judge is quashed.
“James
W. O’Reilly”
Annex “A”
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Citizenship Act, R.S.C. 1985, c. C-29
Grant of citizenship
5. (1) The Minister shall grant citizenship to any
person who
(a) makes application for
citizenship;
(b) is eighteen years of age or
over;
(c) is a permanent resident
within the meaning of subsection 2(1) of the Immigration and Refugee
Protection Act, and has, within the four years immediately preceding the
date of his or her application, accumulated at least three years of residence
in Canada calculated in the following manner:
(i) for every day during which the person was resident
in Canada before his lawful admission to Canada for permanent residence the
person shall be deemed to have accumulated one-half of a day of residence,
and
(ii) for every day during which the person was resident
in Canada after his lawful admission to Canada for permanent residence the
person shall be deemed to have accumulated one day of residence;
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Loi sur la citoyenneté, L.R., 1985, ch.
C-29
Attribution de la citoyenneté
5.
(1) Le ministre attribue la citoyenneté à toute personne
qui, à la fois :
a) en fait la demande;
b) est âgée d’au moins dix-huit ans;
c) est un résident permanent au sens du paragraphe 2(1) de la Loi
sur l’immigration et la protection des réfugiés et a, dans les quatre ans
qui ont précédé la date de sa demande, résidé au Canada pendant au moins
trois ans en tout, la durée de sa résidence étant calculée de la manière
suivante :
(i) un demi-jour pour chaque jour de
résidence au Canada avant son admission à titre de résident permanent,
(ii) un jour pour chaque jour de
résidence au Canada après son admission à titre de résident permanent;
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