Date: 20050726
Docket: T-1700-04
Citation: 2005 FC 1036
Vancouver, British Columbia, Tuesday, the 26th day of July, 2005
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
TSAI TZU CHIU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, the Applicant's citizenship application was dismissed by the Citizenship Judge on a finding of negative credibility. A central feature of the decision rendered is that, because of the negative credibility finding, a finding of fact could not be made with respect to the number of days the Applicant was absent from Canada during the four-year period preceding his application for citizenship. However, it was not disputed that the Applicant was not in Canada for 1,095 days during this period.
[2] As a result of the negative credibility finding, the Citizenship Judge found that "under these circumstances, I see no reason to waive the statutory requirement of 1,095 days of residence".
[3] The negative credibility finding is based largely on discrepancies in the documentary evidence, which certainly called for an explanation by the Applicant. In my opinion, to be fair, it was incumbent on the Citizenship Judge to seek an explanation. Counsel for the Applicant argues that an unfairness arises in the process in that the negative credibility finding cannot be tested for error against any explanation provided by the Applicant because any explanation given was not recorded. That is, no evidence exists on the Tribunal Record of any explanation given by the Applicant with respect to the discrepancies, either in the form of a transcript or notes of the decision-maker. Indeed, the decision rendered is silent on the point.
[4] I agree with Counsel for the Applicant that impugning the Applicant's credibility without fully stating and analysing the evidence upon which this significant conclusion is based constitutes a breach of natural justice.
ORDER
As a result, I allow the appeal.
(Sgd.) "Douglas R. Campbell"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1700-04
STYLE OF CAUSE: TSAI TZU CHIU
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: July 26, 2005
REASONS FOR ORDER AND ORDER: CAMPBELL J.
DATED: July 26, 2005
APPEARANCES:
Lawrence Wong FOR APPLICANT
Jonathan Shapiro FOR RESPONDENT
SOLICITORS OF RECORD:
Wong Pederson Law Offices FOR APPLICANT
Vancouver, BC
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada