Date: 20080327
Docket: T-280-07
Citation: 2008 FC 385
BETWEEN:
SHUK
FONG CHIN
Appellant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing of an appeal under subsection 14(5) of the Citizenship
Act
(the “Act”) against a decision of a Citizenship Judge (the “Judge”)
whereby the Judge rejected the Appellant’s application for Canadian
citizenship. For ease of reference, the substance of the Judge’s notice of his
decision and his reasons therefore is attached as an appendix to these reasons.
The decision under review rejected the Appellant’s application on two (2)
grounds: first, the learned Judge rejected the Appellant’s application by
reason of the fact that, in his view, the Appellant had accumulated
insufficient days of residence in Canada during the relevant statutory period;
and secondly, because the learned Judge concluded that the Appellant did not
have an adequate knowledge of Canada and the responsibilities and privileges of
Canadian citizenship.
RELEVANT STATUTORY
PROVISIONS
[2]
The
opening words of subsection 5(1) of the Act, and paragraphs (c) and (e)
of that subsection read as follows:
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5.
(1) The Minister shall grant citizenship to any person who
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5.
(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
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…
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…
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(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:
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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 :
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(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
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(i) un demi-jour
pour chaque jour de résidence au Canada avant son admission à titre de
résident permanent,
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(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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(ii) un jour
pour chaque jour de résidence au Canada après son admission à titre de
résident permanent;
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…
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…
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(e) has an adequate knowledge of Canada and of the
responsibilities and privileges of citizenship; and
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e) a une
connaissance suffisante du Canada et des responsabilités et avantages
conférés par la citoyenneté;
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…
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…
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THE ISSUES
[3]
Counsel
for the Appellant urged that the learned Judge: first, ignored relevant
evidence, and considered irrelevant evidence when he found that the Appellant
had failed to meet the residence requirement under paragraph 5(1)(c) of the Act;
secondly, ignored relevant evidence, or failed to administer the citizenship
test correctly, when he found that the Appellant had failed to meet the
knowledge requirement under paragraph 5(1)(e) of the Act; and finally,
failed to provide the Appellant procedural fairness when he faulted the Appellant
for failing to bring evidence in support of her application when it was not
specifically requested of her, and refused to consider the evidence submitted
after hearing but prior to the date of notice to the Appellant of the Judge’s
decision.
ANALYSIS
[4]
After
considering the materials before the Court and taking into account the
submissions of counsel at hearing, I am satisfied that the learned Judge did
not err in a reviewable manner on any of the grounds urged on behalf of the Appellant
against the appropriate standard of review on this statutory appeal, that is to
say, “correctness”, given that there is here a statutory right of appeal and
given the nature of the decision at issue.
[5]
On
the other hand, once again against a standard of review of correctness by
reason of the
fact that it is an issue of procedural
fairness,
I am satisfied that this appeal should be allowed on the
ground of inadequacy of the reasons.
[6]
In
VIA Rail Canada Inc. v. National Transportation Agency, the Court
stated:
The obligation to
provide adequate reasons is not satisfied by merely reciting the submissions
and evidence of the parties and stating a conclusion. Rather, the
decision-maker must set out its findings of fact and the principle evidence
upon which those findings were based. The reasons must address the major
points in issue. The reasoning process followed by the decision-maker must be
set out and must reflect consideration of the main relevant factors.
[7]
In
Eltom v. Canada (Minister of Citizenship and Immigration), my
colleague Justice Russell stated:
In Gao v. Canada (Minister of
Citizenship and Immigration),… Mr. Justice O’Keefe held that the reasons of
the Citizenship Judge [on the issue of days of residence in Canada] were
inadequate because they failed to articulate the test that was being applied.
A similar requirement was set out in Yang v. Canada (Minister of
Citizenship and Immigration),… where Mr. Justice Rouleau held that while the
Citizenship Judge had not articulated which test he was applying, he appeared
to be applying the test from Koo, but based on the reasons it was not
clear that he had a proper understanding of the case law, and had not properly
applied his chosen approach. Reasons that do not clearly indicate that the
citizenship judge understood the test that she was applying were again found to
be insufficient in Wang v. Canada (Minister of
Citizenship and Immigration)… .
[citations
and some text omitted]
[8]
In
Abdollahi-Ghane v. Canada (Attorney General), my
colleague Justice Shore dealt
with a situation where a Citizenship Judge failed to provide a detailed
explanation of the criteria he or she used to arrive at his or her decision on
the basis of “adequate knowledge of Canada”. At paragraph 23 of
his reasons, Justice Shore held
that a Citizenship Judge needs to explain the criteria used to determine that
the Appellant has insufficient knowledge of Canada along with
what percentage of the questions asked and answered correctly would have
sufficed to satisfy the knowledge requirement.
[9]
Neither
of the above conditions for adequate reasons of a Citizenship Judge on an
application such as that of the Appellant were here met.
CONCLUSION
[10]
For
the foregoing brief reasons, this statutory appeal will be allowed. The
decision under appeal will be set aside and the Appellant’s application for
Canadian citizenship will be referred back to the Citizenship Court for
redetermination by a different Citizenship Judge.
“Frederick
E. Gibson”
Ottawa,
Ontario
March
27, 2008
SCHEDULE
…
Dear Ms. Chin :
On December 04, 2006, you appeared before
me for a hearing in respect of your application for Canadian Citizenship. In
accordance with subsection 14(3) of the Citizenship Act, the following
constitutes notice of: my decision, the reason therefore and your right to
appeal.
The Facts:
The following is a summary of the
documentary or oral evidence presented by you at your hearing before me:
(1) You became a landed immigrant
of Canada on October 25, 2001.
(2) You applied for Canadian
citizenship on July 11, 2004.
(3) You appeared before me for a
hearing of your application on December 04, 2006.
The issue:
Have you, Ms. Chin, accumulated at least three years (1,095 days) of
residence in Canada within the four years (1,460) days immediately preceding
the date of your application for Canadian citizenship?
Analysis:
Before approving an application for a grant of citizenship made
under subsection 5(1) of the Act, I must determine whether you meet the
requirements of this Act and the regulations, including the requirement set out
in paragraph 5(1)(c) to have accumulated at least three years (1,095
days) of residence within the four years (1,460 days) immediately preceding the
date of your application. “At least three years” does not mean less time; it
means not fewer than three years.
There is Federal Court jurisprudence which does not require physical
presence of the Appellant for citizenship for the entire 1,095 days, when there
are special or exceptional circumstances. However, in my view, too long an
absence from Canada, albeit
temporary, during the minimum period of time set out in the Act, as in the
present case, in [sic] contrary to the purpose of the residency requirements of
the Act. Indeed, the Act already allows a person who has been lawfully
admitted to Canada for permanent residence not to reside in Canada during one of the four years
preceding the date of that person’s application for citizenship.
In your case, in a letter dated July 07, 2005 from Citizenship and
Immigration Canada (CIC), you were asked to provide proof of residence in Canada. I have reviewed the documents
submitted and I am not satisfied that you meet the residence criteria of
paragraph 5(1)(c) of the Act.
Your application, your Residence Questionnaire and the documents you
submitted did not describe or demonstrate social, economic, cultural or social
activities in Canada during the
relevant period of July 11, 2004 to October 25, 2001, a total of 1225 days.
Joint house ownership for a brief period and attendance at school for a brief
period are not sufficient to satisfy me that you have met the residence
requirements. You have also stated going to Hong Kong to receive medical treatment, which is where your husband lives.
The absences you described appear to be consistent with the stamps
in your two passports, however, your passports do not necessarily include all
travels outside Canada. Many
jurisdictions, including the USA and Canada and the European Union, do not routinely stamp passports for incoming
and/or departing persons. Therefore, while a passport is excellent evidence of
recorded travel, it is not an exhaustive list of actual travels.
Following your departure from Alberta, Canada, in June 2004, you stated going to the United States then coming to re-establish
yourself in Ontario in June
2004 at 67 Golding Crescent,
Markham, Ontario. You stated
living at this address up to and including your hearing date of December 04,
2006.
At the hearing, you stated that you could not produce an Ontario
Health card or an Ontario Driver’s license instead, you provided an Alberta
Personal Health card and an Alberta operator’s license. This is despite your statement that you had
moved to Ontario in June 2004.
I find that the pieces of your story do not fit well together and
together with the lack of indices that you live in this country, leads [sic] me
to conclude that on the balance of probabilities, I can not rely on the
information you have provided or given at your hearing. I must conclude that you
also do not meet the Residence criteria 5(1)(c) of the Act.
Furthermore, I found at the hearing, that you did not have an
adequate knowledge of Canada
and of the responsibilities and privileges of citizenship. Subsection 5(1)(e)
of the Citizenship Act provides that an Appellant for citizenship must have an
adequate knowledge of Canada
and of the responsibilities and privileges of Canadian citizenship in order to
qualify for citizenship. At the hearing, you were unable to answer correctly
questions in the following categories...
Paragraph 15(c)(iii)
Canadian Physical and Political Geography
1) What are (name) the Prairie Provinces?
You answered: Ontario, Quebec, New Brunswick
2) Name three large rivers in Canada.
You answered: Lake Ontario, St. Lawrence River, Lake Erie
Paragraph 15(c)(ii)
Canadian Political History and Structure
3) When asked who the Premier of the Province of Ontario was, you
responded
“James Bartleman”.
4) You could not name the political parties in the House of Commons
with the exception of the Liberal Party.
According to Section 15 of the Citizenship Regulations, which
prescribes the criteria for determining whether or not an Appellant has an
adequate knowledge of Canada and of the responsibilities and privileges of
citizenship, you must be able to correctly answer questions prepared by the
Minister based on the information contained in self-instructional material
approved by the Minister and presented to Appellants for the grant of
citizenship.
Pursuant to subsection 15(1) of the Citizenship Act, I have
considered whether or not to make a recommendation for an exercise of
discretion under subsection 5(3) and 5(4) of the Act.
Subsection 5(3) of the Act confers discretion to the Minister to,
among other things, waive on compassionate grounds, in the case of any person,
the knowledge requirements you failed to meet. As to subsection 5(4) of the
Act, it empowers the Governor in Council to direct the Minister to grant
citizenship to any person in cases of special and unusual hardship or to reward
services of an exceptional value to Canada.
There was no evidence presented to me at the hearing of special
circumstances that would justify me in making such a recommendation under
either of subsections 5(3) and 5(4).
Decision:
I have no doubt that you will eventually make an excellent Canadian
citizen, but regretfully at this time, for the reason provided above, I am
unable to approve your application because you have not met the residence
requirement under paragraph 5(1)(c) nor have you met the knowledge requirement
under paragraph 5(1)(e) of the Act. …
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