Date: 20000214
Docket: T-632-99
Winnipeg, Manitoba, this 14th day of February 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
TOONG CHAI KOR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] This is an appeal from the decision of a Citizenship Judge dismissing Toong Chai Kor"s (the applicant) application for citizenship. There is a parallel application with respect to the application of Mr. Kor"s wife, Kim-Foong Chai, Federal Court file no. T-633-99. The material facts are identical in both cases.1 The decisions rendered in each case were practically identical. These reasons apply to both cases and shall be placed on each file.
[2] The issue is the period of residence in Canada. Immigration has a record of Mr. Kor and his wife entering Canada as visitors on February 12, 1990. It has evidence of Mr. Kor and his wife leaving Canada on February 23, 19942. It has a record of their re-entering Canada as permanent residents on February 7, 1995. It has no record of their presence in Canada between February 23, 1994 and February 7, 1995.
[3] The applicants deposes that they left Canada on February 23, 1994 intending to enter the United States in order to make a visa application but were refused entry to the United States. They then returned to Canada and were allowed entry without a record being made of their entry. On the face of it, they would have been ineligible for entry, having just departed Canada pursuant to a departure order and being neither visitors, refugee claimants, nor holders of valid visas.
[4] In support of his application, the applicant tendered his sworn Affidavit, and various business and banking records which show his signature on various items dated throughout the period in issue. The applicant claims that he purchased a smoke shop business through a trust arrangement and that he was in Canada and ran the business during the times which are of concern in this application.
[5] The Citizenship Judge found that the applications were premature. He noted that the applicants were landed on February 7, 1995 and that their applications were made on February 20, 1997. In the circumstances the three years out of four residence requirement found at s. 5(1)c) of the Citizenship Act (the "Act"), R.S.C. c. C-29 could not be satisfied because only two years had elapsed. The Citizenship Judge made no reference to the applicants" time in Canada prior to their landing, nor to the voluminous evidence of Mr. Kor"s presence in Canada.
[6] Mr. Kor submitted evidence in support of his claim that he was in the country continuously from the date of his entry in 1990. His application recited that he had not been outside Canada in the four years preceding his application. He submitted documentary evidence in support of his position. His wife"s application suggests that she was with him at all times save when she was out of the country briefly to bring their child to Canada and to visit the applicant"s father during an illness. None of this was dealt with in the Citizenship Judge"s reasons.
[7] Section 14(3) of the Citizenship Act provides as follows:
| (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. |
[8] While reasons of a sort were given, i.e. the applicant was found not to have met the residency requirements of the Act, the reasons did not address the evidence before the Judge. No reference was made to the evidence of the applicant"s presence in Canada prior to 1995 nor to the evidence in support of his assertion of continuous residence in Canada since that time.
[9] A judge is free to accept or reject the evidence put before him/her but if he/she rejects uncontradicted evidence, reasons for the rejection must be given. The principle was stated this way by Wetston J. in Ali v. Canada [1995] F.C.J. No. 519, at page 4:
| On the other hand, in this situation, where no adverse credibility findings are made, the Board, if it is not going to accept the evidence of the applicant, should provide sufficient reasons for not doing so. Simply saying that the evidence is hearsay is not a sufficient basis for not accepting the applicant's sworn testimony. The Board is not necessarily required to accept testimony just because no adverse finding of credibility has been made. However, where the testimony is not accepted, sufficient reasons must be provided. |
[10] In this case, there was evidence which suggested that the applicants had been in Canada throughout the period following their arrival on February 12, 1990. The Citizenship Judge ignored that evidence and dealt with the application solely on the basis of time in Canada since date of landing. In doing so, the Citizenship Judge either failed to consider evidence which was before him, or considered it and found it wanting but did not give his reasons for doing so. In either case, the applicant is entitled to some relief.
[11] This raises the question of remedies. The applicant asks that for a variety of remedies most of which have the flavour of administrative law remedies. This is a statutory appeal, not an application for judicial review, even though the Federal Court Rules, 1998 require that it be brought by Notice of Application. The question is what remedial powers are available to this Court sitting as a court of appeal. The question has been considered and answered by Reed J. in Ma v. Canada [1999] F.C.J. No. 288, at pages 9 and 10, (1999) 163 F.T.R. 156 where it was held that:
| Inherent in an appeal process is the authority to refer the matter back for rehearing. Indeed, even under the old de novo hearing procedure, referral back for rehearing was ordered where a citizenship judge failed to consider some matter that should have been considered: see In the Matter of Moa-Song Chang, (T-1183-97, February 5, 1998). |
[12] Is the power to refer matters back to the Citizenship Court limited to sending matters back for a fresh hearing before a different judge, or does it extend to sending the matter back to the same judge with a direction that reasons be provided for the failure to consider the pre-landing evidence of residence? In the first case, the applicant"s relief is a fresh chance at obtaining citizenship; in the second case, the result stands but the applicant learns the basis on which the decision was made.
[13] Does it make sense to send this matter back for a new hearing before a different judge when the defect which invites the Court"s intervention is one which can be remedied by the original judge. The decision may be correct or incorrect; the parties may not be able to tell because they do not have the benefit of reasons which are responsive to the evidence. If proper reasons are provided by the original judge, the original decision can be assessed on its merits. However, this then involves adjourning the appeal to allow for reasons to be provided, allowing for an amendment of the Notice of Application if new grounds are disclosed by the reasons, allowing the filing of supplementary materials and rescheduling argument if the appeal is pursued. It may be more economical to simply allow the appeal and send the matter back to be heard by a different judge. This may result in a fresh appeal but the Court will not be involved in managing it as it would if the matter is sent back for reasons to be provided. Furthermore, this issue may well be academic in that two years have passed since the original application was made. Rather than pursue such a lengthy appeal, the parties may simply choose to make a fresh application.
[14] In the interests of simplicity, I will allow the appeal and order that the matter be sent back for rehearing before a different judge of the Citizenship Court.
[15] Both sides asked for costs to be assessed against the other. The applicants argue that since a clear error has been made and no effort made to correct it, costs on a solicitor and client basis in the amount of $6,600 should be awarded. The respondent also seeks costs due to the factual inconsistencies in the applicant"s materials. I decline to make the order sought by the applicants. The difficulties they have encountered arise directly from the fact of their illegal status in Canada prior to February 7, 1995. If they re-entered Canada as they say they did on February 23 1994, the absence of a record may well be due to the fact that they were not entitled to re-enter Canada. I am not prepared to reward non-compliance with the laws of Canada with an award of costs. As a result, even though the applicants have had a measure of success on the appeal, I am not prepared to make any award as to costs.
ORDER
For the reasons stated above, the appeal is allowed and the matter is remitted to the Citizenship Court for rehearing by a different Judge of the Citizenship Court.
"J.D. Denis Pelletier
Judge
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1 There is a difference in the facts in that the applicant"s wife was out of Canada on two occasions following February 7, 1995 with the result that she is short approximately 50 days of the required 1,095.
2 The evidence of departure is a Voluntary Departure/Confirmation form stamped and signed by an Immigration officer which shows that the applicant left Canada at Niagara Falls at 1500 hours on February 23, 1994