Date:
20130412
Docket:
T-1157-12
Citation:
2013 FC 370
Ottawa, Ontario,
April 12, 2013
PRESENT: The
Honourable Madam Justice Strickland
BETWEEN:
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AYELETE KOROLOVE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an appeal by Ayelete Korolove (Applicant) of the May 8, 2012 decision of
citizenship judge Philip Gaynor (Citizenship Judge) denying her application for
citizenship. The denial is on the grounds that the Applicant did not satisfy
the residency requirement of subsection 5 (1)(c) of the Citizenship
Act, RSC 1985, c C-29 (Act). This appeal is brought pursuant to subsection
14(5) of the Act and in accordance with section 18.1 of the Federal Courts
Act, RSC 1985 c F-7 and Rule 300(c) of the Federal Courts Rules,
SOR/98-106.
Background
[2]
The
Applicant is a Kazakh-born Israeli citizen. She arrived in Canada on March 17, 2003 and filed a refugee claim which was denied in June of 2004. Her
application for judicial review of that decision was dismissed on November 26,
2006.
[3]
The
Applicant married in August 2004 and her then-husband sponsored her for
permanent residency. They had a daughter who was born in Toronto on June 12, 2005.
The Applicant became a permanent resident of Canada on December 6, 2006. She
applied for Canadian citizenship on May 26, 2009. On July 4, 2011, she wrote
and passed the Citizenship test and submitted a Residence Questionnaire, as
requested.
[4]
On
August 19, 2011, a citizenship officer referred the Applicant’s citizenship application
to the Citizenship Judge to assess the Applicant’s residence and credibility
(referral letter). In the referral letter, the officer notes that the relevant
four-year period is May 26, 2005 to May 26, 2009. The letter also notes that on
May 22, 2007 the Applicant’s (Israeli) passport was reported stolen and that as
a result, the period from “26May 05 to May/07” could not be reviewed. The officer
states that an Integrated Customs Enforcement System (ICES) report “may be able
to provide missing information”. The referral letter contained notations
concerning a review of the Applicant’s passport and travel document, including
“No stamps back into Canada between 23jan08 - 30jan08 and 10feb08 to 12april 08.may
have possible another 67 days out”.
[5]
The
Applicant’s citizenship hearing was held on September 9, 2011. At the
conclusion of the hearing, she was asked to provide additional specified
supporting documentation to permit the Citizenship Judge to assess her
residency. She provided the following documentation on October 7, 2011:
- Provincial
health care history from OHIP between January 1, 2005 and December 31,
2009;
-
Agreements
of purchase and sale for houses owned by the Applicant;
-
Letters
from editors/presidents of two Canadian publications to which the Applicant has
contributed;
-
Notices
of Assessment for tax years 2004-10;
-
ICES
traveller report for the period January 1, 2005 and December 31, 2009.
[6]
The
Citizenship Judge refused the Applicant’s citizenship application on May 9,
2012 on the basis that she did not meet the subsection 5(1)(c) residency
requirements (Decision). The Decision is under review in the present case.
Decision Under
Review
[7]
The
Decision summarizes the documentary and oral evidence before the Citizenship
Judge. It states, amongst
other things:
3.
The relevant period to meet the residence requirement, in your case, is from
December 06, 2006 to May 26, 2009 an accumulated total of 1,181 days.
4.
On your application, you declared 96 days of absences from Canada, during the relevant period. After further review, I determined that you were absent from Canada for at least 171 days. This calculation (1,181-171) leaves you with a physical
presence in Canada of 1,010 days.
[8]
The Citizenship Judge
goes on to state that the issue is whether the Applicant satisfies the residence
requirement under paragraph 5(1)(c) of the Act. In deciding this, he states
that he has adopted the physical presence test set out in Pourghasemi(Re), [1993] FCJ No 232, 62 FTR 122 (TD), which requires
citizenship applicants to establish that they have been physically present in
Canada for 1,095 days during the relevant four year period. The Citizenship Judge
concludes:
In
your case, after reviewing all of the documentation on file, I am not satisfied
that you have met the residence requirements of the Act. You have not submitted
sufficient information covering the period between 2006 and 2007. You were
absent from Canada for 171 days, during the period under review. Consequently,
you are (1,095-1,010) 85 days short of the minimum required 1,095 days as per
the Act.
[9]
The
Citizenship Judge adds that he has decided not to exercise his discretion
pursuant to subsection 15(1) of the Act to make a favourable recommendation for
a discretionary grant of citizenship, as provided for under subsection 5(4) of the
Act.
Issues
[10]
I
would phrase the issues as follows:
i) What
is the applicable standard of review?
ii) Did
the Citizenship Judge reasonably conclude that the Applicant did not meet the
residency requirements?
iii) Was
the Citizenship Judge required to also conduct a qualitative analysis?
Analysis
i) Standard of Review
[11]
The
Supreme Court in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras 34,
45
[Dunsmuir] held that there are two standards of review: reasonableness
for questions of mixed fact and law and correctness for questions of law. Reasonableness
is a deferential standard concerned mostly with the existence of justification,
transparency and intelligibility within the decision making process, but also
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law (para 47). Where previous jurisprudence
has satisfactorily determined the appropriate standard of review applicable to
a particular issue, that standard may be adopted by a subsequent reviewing
court (paras 57, 62).
[12]
In
this instance, the jurisprudence has established that a citizenship judge’s determination
of whether a citizenship applicant meets the residency requirements is a
question of mixed fact and law reviewable on the reasonableness standard.
Accordingly, that standard is applicable to the second issue (Zhou v Canada
(Minister of Citizenship and Immigration), 2013 FC 19, [2013] FCJ No 37 at
para 13; Burch v Canada (Minister of Citizenship and Immigration), 2011
FC 1389, [2011] FCJ No 1695 at para 30; Pourzand v Canada (Minister of
Citizenship and Immigration), 2008 FC 395, [2008] FCJ No 485 at para 19; Rizvi
v Canada (Minister of Citizenship and Immigration), 2005 FC 1641, [2005]
FCJ No 2029 at para 5).
[13]
The issue of whether
the Citizenship Judge applied the right residency test is a question of law. As
such, the Citizenship Judge’s selection of the applicable residency test is
reviewable on the standard of correctness (Gosh v Canada (Minister of
Citizenship and Immigration), 2013 FC 282, [2013] FCJ No 313 at paras
14-18; Burch, above, at para 3l; El Ocla v (Minister of Citizenship
and Immigration), 2011 FC 533, [2011] FCJ No 667 at paras 12, 13, 19; Lin
v Canada (Minister of Citizenship and Immigration), 2002 FCT 346, [2002]
FCJ No 492 at para 9).
ii) Reasonableness
of the Decision
a) Relevant
Residency Period
[14]
The
Decision states that the
relevant period to meet the residence requirement in the Applicant’s case is
from December 6, 2006 to May 26, 2009, an accumulated total of 1,181 days.
[15]
The
Applicant submits that the Citizenship Judge erred in determining that the
relevant residency period was from December 6, 2006 (date at which the
Applicant became a permanent resident) to May 26, 2009 (date of her citizenship
application). Subsection 5(1)(c) of the Act requires that an applicant,
within the four years (1,460 days) immediately preceding the date of their
application, accumulate at least three years (1,095 days) of residence in
Canada calculated as set out in subsections 5(1)(c)(i) and (ii). As such, the correct
period in this case should have been calculated from May 26, 2005 to May 26,
2009, as noted in the referral letter.
[16]
According to the
Applicant, this error results in an additional 560 days, reduced by half pursuant
to subparagraph 5(1)(c)(i) of the Act, as she was without status between May
26, 2005 and December 6, 2006. As such, the Citizenship Judge’s calculation of
1,010 days should be increased by 280, totalling 1,290 days of physical
presence in Canada. The Applicant submits that the Citizenship Judge made “an
error of law on the face of the record”, which warrants the Decision being set
aside.
[17]
The Applicant
acknowledges that despite this error, the Citizenship Judge did conclude that
the Applicant had accumulated 1,181 days, which could suggest that he examined
the appropriate four-year period.
[18]
The Respondent concedes
that the Citizenship Judge mistakenly stated that the relevant four-year period
began on December 6, 2006, but stresses that this was merely a clerical error. This
is evidenced by the fact that the Citizenship Judge “correctly concluded” that
the number of eligible days for residency was 1,181, which represents the
appropriate four-year period, May 26, 2005 to May 26, 2009. The Respondent
generated a table included in its written submissions to illustrate this, calculating
the total to be 1,181.5 days.
[19]
I agree with the
Respondent that the Citizenship Judge’s statement in the Decision that the
relevant residency period began on December 6, 2006 is a clerical error –
albeit an unfortunate one. In this case, had the Citizenship Judge conducted
his calculation of the accumulated eligible days using December 6, 2006 as the
starting date of the relevant residency period, then this would have resulted
in a total of 901 days. Thus, because 1,181 days could have been arrived at if
the Citizenship Judge had utilized May 25, 2005 as the starting date of the
residency period, it could be inferred that the correct residency period was
utilized in the Decision.
[20]
As to the impact of this error, the
Applicant points to Justice Teitelbaum’s decision in Islam v Canada (Minister of Citizenship and Immigration), 2009 FC 10, [2009] FCJ No 14 at
para 22 [Islam], as an example of a decision of this particular
Citizenship Judge being quashed on similar grounds:
[22] […] First, the Judge failed
to assess any days' residency for the period before the Applicant became a
permanent resident but within the four-year assessment period. While the
Respondent submits that this would not have made a difference to the
determination, it is nevertheless contrary to the provisions of subparagraph
5(1)(c)(i) of the Act and is thus an error of law that must be
corrected.
[21]
In my view, the present case can
be distinguished from Islam, above, because it does not appear
that the Citizenship Judge “failed to assess” the Applicant’s presence in Canada before she became a permanent resident. This is evidenced by the fact that the
Citizenship Judge arrived at a total of 1,181 days. For that reason, I do not
believe that the mis-stated residency period starting date, or clerical error,
constitutes an error of law requiring intervention by this Court. Nor do I
believe that it constitutes an error on the face of the record that alone
warrants such intervention.
[22]
That said, here the Citizenship
Judge gave no indication as to how he arrived at his conclusion that the
Applicant had accumulated 1,181 eligible days, nor did he explain why this
differed from the Applicant’s calculation of 1,134 eligible days as contained
in her citizenship application. This raises the question of the adequacy of
the Citizenship Judge’s reasons, discussed below.
b) Adequacy
of Reasons
[23]
In her application for
citizenship, the Applicant calculated that during the relevant period she had
been absent from Canada for 96 days. Taking those absences into account, she then
calculated that she had been in Canada for 1,134 days during the relevant
residency period. This exceeded the required 1,095 days.
[24]
In his Decision, the
Citizenship Judge acknowledged that the Applicant had declared 96 days of absence from Canada but stated
that, after further review, he determined that she had been absent for “at
least 171 days”. Given this, on his calculation (1,181-171) she had a physical
presence in Canada of 1,010 days, being 85 days short of the required 1,095
days. He also stated that the Applicant had not submitted sufficient
information covering the period between 2006 and 2007.
[25]
The Applicant submits
that the Citizenship Judge gave inadequate reasons for his conclusion that she
had been absent “for at least 171 days” and that it is impossible to understand
how he arrived at his calculation. In that regard, the Applicant refers to Canada (Minister of Citizenship and Immigration) v Baron, 2011 FC 480, [2011]
FCJ No 735 at paras 17-18, where Justice
Bédard set aside a citizenship judge’s decision because his reasons were not
adequate and were unclear. Justice Bédard was, therefore, not in a position to
determine whether the decision fell within a range of possible, acceptable
outcomes.
[26]
The Applicant submits
that in the present case, the Citizenship Judge was required to give adequate
reasons for rejecting the Applicant’s evidence that she met the residency
requirements. In particular, how he arrived at his conclusion that she was
absent from Canada for at least 171 days, and, his determination that
insufficient information was provided for the period 2006-2007 given that her
ICES traveller history demonstrates that she did not leave Canada between January 1, 2005 and October 17, 2007. Moreover, her OHIP report shows regular
medical assessments between January 1, 2005 and December 31, 2009.
[27]
The Applicant also
suggests that the Citizenship Judge “blindly adopted” the citizenship officer’s
assessment that the Applicant was possibly absent for an additional 67 days. Had
he examined her OHIP and ICES records, he would have seen that she was present
in Canada during the potentially problematic periods. His failure to do so led
him to make erroneous findings of fact and violated his duty to examine all
available documentary evidence (Canada (Minister of Citizenship and
Immigration) v Jreige, [1999] FCJ No 1469, 175 FTR 250 at paras 20-22;
Bogdanovich v Canada (Minister of Citizenship and Immigration), 2002 FCT
181, [2002] FCJ No 241 at para 11). This is particularly concerning as
the discrepancy in numbers is of material importance to the outcome of the
Decision.
[28]
The Applicant also
states that she could not have left Canada between May 26, 2005 and December 6,
2006, for the following reasons:
- In
May 2005, she was in her last month of pregnancy;
- Her ‘In-Canada Spouse Sponsorship’ was still being
processed;
- She was subject to an enforceable removal order (due to
the rejection of her refugee claim). Thus, had she left Canada, she would not have been able to re-enter or become a permanent resident;
- The ICES traveller history report would have contained
the appropriate record; it does not.
[29]
The Applicant submits
that there is no evidence that she was absent from Canada prior to December 6,
2006, that the Citizenship Judge ignored or overlooked the ICES report and, as
such, that his conclusion that she did not submit sufficient information
regarding her presence in Canada in 2006 is an “uncorroborated assertion, which
amounts to a reviewable error.” The Applicant refers to Nguyen v Canada (Minister
of Citizenship and Immigration), 2009 FC 1244, [2009] FCJ No 1694, where
the same Citizenship Judge’s decision was quashed due to his failure to
determine the applicant’s residency despite her having submitted satisfactory documentation.
[30]
The Respondent submits
that the Citizenship Judge reasonably determined that, of her 1,181 eligible
days, the Applicant was absent from Canada for “at least 171 days” and
therefore failed to meet the residency requirement. In that regard, the Respondent
conducted a review of the Applicant’s travel history. Based on that review, the
Respondent generated and included in its written submissions a second detailed
table which, the Respondent submits, demonstrates that the Citizenship Judge
made a reasonable determination concerning the Applicant’s absences from Canada
as, by the Respondent’s calculation, she was absent at least 180 days.
[31]
The Respondent also stresses
that the onus was on the Applicant to establish her residency. She engaged in
extensive travel during the relevant period and, even by her estimate (96 days
of absence), she still falls short of the 1,095 day requirement (1,181 – 96 =
1,085).
[32]
The Respondent further
submits that it was open to the Citizenship Judge to conclude that the
Applicant did not provide sufficient evidence of her residence given the types
of evidence that she could have submitted in support of her application.
Instead she provided only one utility bill and no phone, cable or internet
records; failed to provide the inner pages of her daughter’s passport (which
would clarify her travel history); provided bank records that did not show
regular use; failed to provide details of her Canadian business or examples of
the writing she did for the Canadian publications.
[33]
The Respondent also
points out that although the Applicant’s daughter was born in June 2005,
she was not registered in Ontario until January 2006 and there are no medical
records for the daughter during this period. As such, the fact that the
Applicant had a baby in 2005 does not prove that she resided in Canada from that time onwards. Additionally, the medical records are of limited
evidentiary value because they only show that the Applicant was in Canada for single days at a time, including appointments on the same day she re-entered Canada after travelling. The record also shows that the Applicant allegedly received
medical services in Canada when her passport indicates that she was in the United States.
[34]
The Respondent
concludes that, in any event, adequacy of reasons is not stand-alone ground of
review, the Judge’s decision must be read as whole (Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at
paras 14-15 [Newfoundland Nurses]; Baig v Canada (Minister of Citizenship and Immigration), 2012 FC
858, [2012] FCJ No 963 at para 10).
[35]
It is correct that in Newfoundland
Nurses, above, the Supreme Court of Canada discussed Dunsmuir,
above, and stated that it did not stand for the proposition that the “adequacy”
of reasons is a stand-alone basis for quashing a decision. Rather, a reviewing
court is to conduct a more “organic exercise”, in which the reasons for a
decision under review must be read together with the outcome and serve the
purpose of showing whether the result falls within the range of possible
acceptable outcomes (para 14). In other words, ‘adequacy of reasons’ forms
part of the broader reasonableness analysis.
[36]
The Supreme Court went on to state
that “courts should not substitute their own reasons, but they may, if they
find it necessary, look to the record for the purpose of assessing the
reasonableness of the outcome” (para 15).
[37]
The Court in Newfoundland Nurses,
above, also
referenced Professor David Dyzenhaus’ view that “‘[r]easonable’ means here that
the reasons do in fact or in principle support the conclusion reached. That
is, even if the reasons in fact given do not seem wholly adequate to support
the decision, the court must first seek to supplement them before it seeks to
subvert them”(para 12, citing David Dyzenhaus, “The
Politics of Deference: Judicial Review and Democracy”, in Michael
Taggart, ed, The Province of Administrative Law (Oxford: Hart
Publishing, 1997) at 304).
[38]
In
this case, both parties point to a multitude of alleged deficiencies in the
other’s evidence or reasoning. For example, the Applicant states that the Citizenship
Judge failed to look at the ICES and OHIP reports, which would have addressed
the alleged ‘gaps’ pointed out in the referral letter. The Respondent, on the
other hand, points to alleged inconsistencies in the Applicant’s medical
reports and suggests that her medical visits only account for 14 days in 2007.
[39]
As
noted
above, as a part of its written submissions, the Respondent conducted a review
of the Applicant’s travel history. Based on that review, the Respondent generated
a detailed table which it submits demonstrates that the Citizenship Judge made
a reasonable determination concerning the Applicant’s absences from Canada because, by the Respondent’s calculation, she was absent at least 180 days.
[40]
The
problem, however, is
that the Citizenship Judge’s reasons give absolutely no indication as to how he
arrived at “at least 171 days” when determining the Applicant’s absences from Canada. Although his conclusion may be supported by the record, as the Respondent has
sought to demonstrate by its own calculations intended to demonstrate the
reasonableness of the Decision, in my view it was the Citizenship Judge’s
role, not the Respondent’s nor this Court’s, to explain the Decision (Singh
v Canada (Minister of Citizenship and Immigration), 2008 FC 673, [2008] FCJ
No 864 at para 18 [Singh]).
[41]
In
Dunsmuir, above, the Supreme Court stated that reasonableness “is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process” (para 47). Here, because
the Citizenship Judge fails to give any explanation as to how he arrived at his
conclusion that the Applicant had an accumulated total of 1,181 eligible days
and was absent for at least 171 days, the Decision is not justified,
transparent and intelligible. In the absence of such reasons, they cannot be
read together with the outcome to determine if the result is, or is not, within
the range of acceptable outcomes. Which, in this case, means whether the
number of eligible days was more than 1,095, and therefore that the residency
requirement has been met and the Decision is unreasonable, or whether the
number of days is less than 1,095, in which case the requirement has not been
met and the Decision is reasonable.
[42]
The
Supreme Court in Newfoundland Nurses, above, cautioned that while
reviewing courts should seek to supplement a decision-maker’s reasons, they
should not substitute their own reasons for those of the decision-maker (para
15).
[43]
This principle was recently rearticulated by Justice Martineau in Szabo
v Canada (Minister of
Citizenship and Immigration), 2012 FC 1422, [2012] FCJ No 1524 at para 11 [Szabo],
where he stated:
[11] […] I do not believe that to
"supplement" the tribunal's reasons, as suggested by Newfoundland
Nurses, above, means that the reviewing court must substitute itself to the
tribunal and determine on its own motion, after an analysis of the evidence on
record, whether or not it is in the "interests of justice" to allow
or dismiss an application for reinstatement. While the Supreme Court of Canada
"has strongly emphasized that administrative tribunals do not have to
consider and comment upon every issue raised by the parties in their
reasons", on the other hand, before this Court, "the issue remains
whether the decision, viewed as a whole in the context of the record, is reasonable",
as stated by the Supreme Court in Construction Labour Relations v Driver
Iron Inc, 2012 SCC 65 at para 3. […]
[44]
The Supreme Court’s recent
decision in Canada (Attorney General) v Kane, 2012 SCC 64, [2012]
SCJ No 64 at para 9 [Kane], also cautioned reviewing courts against
undertaking their own assessment of the record and attributing a justification
to the decision-maker:
[9] […] the
Tribunal made no finding as to what the employer's "principal
justification" may have been. Respectfully, the majority of the Federal
Court of Appeal erred by effectively undertaking its own assessment of the
record and attributing to the employer a "principal justification"
for its decision that the Tribunal did not find. It was not appropriate for the
Federal Court of Appeal, on a judicial review, to intervene in the Tribunal's
decision to this extent.
[45]
In
my
view, the Respondent in the present case is essentially asking the Court to
undertake its own assessment of the record and, to paraphrase Kane,
attribute a justification to the Citizenship Judge. The Respondent’s
submissions require the Court to examine the record with a fine-tooth comb, pull
out the relevant dates, undertake its own calculation of the Applicant’s
absences and assume that this constitutes the justification underlying the Citizenship
Judge’s conclusion. This is precisely the exercise undertaken by the
Respondent in its written submissions.
[46]
In
my view, such ‘reverse-engineering’ of the Citizenship Judge’s Decision crosses
the line between supplementing and substituting reasons. Since this goes
against the principles set out in Newfoundland Nurses, Szabo, Kane
and Singh, all above, I believe the Court should refrain from adopting
the Respondent’s speculation as to the Citizenship Judge’s rationale.
[47]
The
only way to understand the Citizenship Judge’s reasons as to the applicable
number of eligible residency days and the number of days during which the
Applicant was absent from Canada is to effectively conduct a de novo
examination of the record. Further, the calculation of these days – accurately
or inaccurately – is of material importance and is determinative of the
Applicant’s citizenship application. Accordingly, and for the reasons set out
above, I do not believe that the reasons meet the transparency, justification
and intelligibility requirement set out in Dunsmuir. The Decision is
thus unreasonable.
iii)
Qualitative Analysis
[48]
Given my
above finding above, it is not necessary to address this issue.
[49]
A
final matter to be addressed is the Applicant’s request to file additional
evidence in the form of an affidavit and attached documents that she described
as business records. The Applicant submitted that this did not constitute new
evidence, as it would serve to assist the Court in understanding the relevant
dates, and that it was admissible under the Canada Evidence Act,
RSC 1985, c C-5.
[50]
In
Chaudhry v Canada (Minister of Citizenship and Immigration), 2011 FC
179, [2011] FCJ No 355 at paras 21-22 [Chaudhry], this Court held:
[21] In his
submissions, the Applicant presented new documentary evidence to this Court.
The Respondent is arguing that such evidence cannot be considered. The issue of
a de novo appeal in citizenship cases has been
addressed in Canada (Minister
of Citizenship and Immigration) v Wang, 2009 FC 1290, 360 FTR 1, where Justice Mandamin
stated at paragraphs 23 and 24 that:
In Canada (Minister of Citizenship and Immigration) v. Hung, [1998] F.C.J. No. 1927, Justice Rouleau
wrote at paragraph 8, "Under the new Rules, citizenship appeals are no
longer trials de novo,
but instead are now to proceed by way of application based on the record before
the Citizenship judge: no longer may new evidence be submitted before this
Court".
Accordingly, I will not consider the new evidence
introduced by Minister's affiant concerning Ms. Wang's prior citizenship
applications.
[22] I fully agree with the Respondent
that the evidence submitted to this Court by the Applicant should not be taken
into account.
[51]
This reasoning has been confirmed in subsequent cases,
where this Court has referred to Wang (cited in Chaudhry, above)
and held that citizenship appeals are to be decided on the basis of the record
that was before the citizenship judge (Hao v Canada (Minister of Citizenship
and Immigration), 2011 FC 46, [2011] FCJ No 143 at para 2; Sotade v
Canada (Minister of Citizenship and Immigration), 2011 FC 301, [2011] FCJ
No 383 at para 2; El-Khader v. Canada (Minister of Citizenship and
Immigration), 2011 FC 328, [2011] FCJ No 426 at para 2; Ye v Canada
(Minister of Citizenship and Immigration), 2011 FC 1337, [2011] FCJ No 1639
at para 3; Canada (Minister of Citizenship and Immigration) v Willoughby,
2012 FC 489, [2012] FCJ No 626 at para 3).
[52]
Further,
as a general rule, new evidence that was not before the decision-maker will
only be admissible where a breach of natural justice or procedural fairness is
alleged, that is not the case here (Saifee v Canada (Minister of Citizenship
and Immigration), 2010 FC 589, [2010] FCJ No 693 at para 28).
[53]
Accordingly,
I have not considered the additional evidence sought to be adduced by the
Applicant.
JUDGMENT
THIS
COURT’S JUDGMENT is that the appeal is allowed and the matter is
returned for a new hearing by a different citizenship judge.
“Cecily Y. Strickland”
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