Date: 20000830
Docket: T-1506-99
Ottawa, Ontario, this 30th day of August 2000
| PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER |
BETWEEN:
WEI-CHENG LAI
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: T-1507-99
BETWEEN:
LEE MEI-HSIU LAI
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] Wei-Cheng Lai and his wife Lee Mei-Hsiu Lai are applicants for citizenship whose business interests have kept them out of the country for more than one year in the four years preceding the date of their application. The Citizenship Judge denied their application. Counsel for applicants says that the Judge applied the test set out by Mr. Justice Thurlow (as he then was) in Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.), (1978), 88 D.L.R. (3d) 243, but failed to apply it correctly. Counsel for the respondent says that the Citizenship Judge applied the test propounded by Mr. Justice Muldoon in Re Pourghasemi (1993), 19 Imm. L.R. (2d) 259 (F.C.T.D.), (1993), 62 F.T.R. 122, and applied it correctly. In these circumstances, the adequacy of the reasons given by the Citizenship Judge is clearly the issue.
[2] An appeal was taken by each of Wei-Cheng Lai and Lee Mei-Hsiu Lai. Because the facts are essentially identical, the appeals were heard together. These reasons apply to both appeals and will be placed on each file.
[3] It is unnecessary to review the all too familiar history of the divided opinion in this Court on the question of the residence requirement found at paragraph 5(1)(c) of the Citizenship Act (the "Act"). Suffice it to say that a number of judges of this Court have found that the failure to be physically present in the country for 1,095 days in the four years immediately preceding the date of application is not a bar to citizenship if the applicant can show that notwithstanding the absences, he has centralized his ordinary mode of existence in Canada such that periods of absence do not count against him. In doing so, they adopted the reasoning in Re Papadogiorgakis, supra. Other judges have followed Re Pourghasemi, supra, and have dismissed applications where the days of physical presence did not meet the statutory minimum without regard to the reasons for the shortfall.
[4] There have been at least two attempts to bridge the conflicting positions, Re Koo, [1993] 1 F.C. 286 (T.D.), [1992] F.C.J. No. 1107, a decision of Madam Justice Reed and Re Lam, [1999] F.C.J. No. 410, (1999), 164 F.T.R. 177, a decision of Mr. Justice Lutfy (as he then was). In Koo, Madam Justice Reed listed those factors which, in her view, would suggest a sufficient attachment to Canada to justify the granting of citizenship notwithstanding that the periods of absence exceed the statutory maximum. Mr. Justice Lutfy, on the other hand, approached the problem from the point of view of standard of review and concluded that where a Citizenship Judge, "in clear reasons which demonstrate an understanding of the case law" adopted one approach or the other, the Judge hearing the appeal ought not to arbitrarily substitute his view of the residence requirement for the Citizenship Judge"s.
[5] It would be difficult to describe the Judge"s reasons in this case as "clear reasons which demonstrate an understanding of the case law". The letter which was forwarded to the applicants simply says:
| ... you had to satisfy me that your absences from Canada counted as periods of residence. |
| Until the date of your citizenship application on July 20, 1998 you were absent for approximately 834 days and present for only 627 leaving you 468 short of the required 1095 days. A full review of your case has led me to conclude that your substantive absences from Canada cannot be counted as periods of residence under the Act. |
[6] The applicant says that the reference to periods of absence counting as periods of residence that the Citizenship Judge meant to apply the test in Re Papadogiorgakis, supra. Counsel for the respondent points to the following paragraph which reads as follows:
| I have considered and decided against making an affirmative recommendation under subsection 5(3) or 5(4) of the Act, especially since there was no evidence of any health disability, or any special or unusual hardship, or services of an exceptional value to Canada. |
[7] In her submission, this reference to subsections (3) and (4) of section 5 which provides for an exemption from the requirements of paragraph 5(1)(c) means that the Judge found that the requisite number of days of presence had not been satisfied, showing that the Citizenship Judge meant to apply the test in Re Pourghasemi, supra. Further evidence of this is found in the Tribunal Record on the "Notice to the Minister of the Decision of the Citizenship Judge"form where the following appears under "Reasons - Motifs":
Total absence 834 - "out more than in" cannot comply 5(1)c
[8] This is perhaps a clearer indication that the Citizenship Judge meant to simply rely on days of physical presence in Canada as the basis for his decision.
[9] The Act requires the Citizenship Judge to give notice of his decision to the Minister and to the applicants. Subsection 14(2) deals with notice to the Minister:
| (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. |
(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. |
[10] Subsection 14(3) deals with notice to the applicants.
| (3) Where a citizenship judge does not approve an application under subsection (2), the judge shall forthwith notify the applicant of his decision, of the reasons therefor and of the right to appeal. |
| (3) En cas de rejet de la demande, le juge de la citoyenneté en informe sans délai le demandeur en lui faisant connaître les motifs de sa décision et l'existence d'un droit d'appel. |
[11] The issue of the adequacy of reasons was dealt with by the New Brunswick Court of Appeal in Boyle v. New Brunswick (Workplace Health, Safety and Compensation Commission), [1996] N.B.J. No. 291, (1996), 179 N.B.R. (2d) 43, where the headnote summarizes the finding of Bastarache J.A. as follows:
| The duty to give reasons was not simply met by listing the evidence considered. Reasons must explain to the parties why the Tribunal decided as it had, and must also be sufficient to enable the Appeal Court to discharge its appellate function. Thus, the Tribunal must set out the evidence supporting its findings in enough detail to disclose that it had acted within jurisdiction and not contrary to law. |
[12] It is clear that in this case, there is neither an enumeration of the elements of the evidence considered nor an explanation as to how the Citizenship Judge reached the conclusion which he did. For that reason, I do not believe that the obligation to provide the applicants the reasons for the decision have been satisfied.
[13] This would be sufficient to dispose of the appeal. However, it is apparent that there is another reason for which the appeal must be allowed. The reasons provided to the Minister in the "Notice to the Minister of the Decision of the Citizenship Judge" are not the same as the reasons provided to the applicants. While it is not obvious what either set of reasons says, it is axiomatic that the same reasons must be provided to the Minister and to the applicants. The reasons provided to the Minister suggest that the application failed on the issue of days of physical presence, whereas the reasons provided to the applicants seem to suggest that the constructive residence test had not been met.
[14] For these reasons, the appeal is allowed. Counsel for the applicants asked that the Court make the decision which the Citizenship Judge ought to have made and send the matter on to the Minister, with a recommendation for the granting of citizenship. There is some authority that the Court can direct the attention of the Citizenship Judge rehearing the matter to particular evidence or to the Court"s reasons ( see Re Fudoli , [1995] F.C.J. No. 467, (1995), 93 F.T.R. 148, per MacKay J. ) but this falls short of demonstrating that the Court is entitled to make the decision which the Citizenship Judge ought to have made. It has been held that the Court lacks the jurisdiction to make a recommendation as to the exercise of the Minister"s discretion pursuant to subsection 5(3) of the Act . Re Khat (1991), 49 F.T.R. 252, (1991), F.C.J. No. 949 (per Strayer J.) However, there is precedent for an order that the matter be reheard by a different Citizenship Judge and so I will make an order to that effect.
ORDER
The appeals from the decision of Citizenship Judge Overlander are hereby allowed and the matter is sent back to be reheard by a different Citizenship Judge.
"J.D. Denis Pelletier"
Judge