Date: 20010322
Docket: T-545-00
Neutral Citation: 2001 FCT 232
BETWEEN:
PO KIT POON
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
HENEGHAN J.
INTRODUCTION
[1] Mr. Po Kit Poon (the "Applicant") appeals from the decision of Citizenship Judge Sigmund Reiser, rendered on January 19, 2000, refusing the Applicant's application for Canadian citizenship.
FACTS
[2] The Applicant is a businessman from Hong Kong. He landed in Canada on January 28, 1995 and subsequently bought a house in Scarborough, Ontario. He established bank accounts in Canada and obtained a driver's licence, Social Insurance Number and an OHIP card. The Applicant transferred his capital assets to Canada. He is employed by a Canadian company and files income tax returns in Canada. His business interests require him to travel outside Canada. According to the decision of the Citizenship Judge, the Applicant spent a total of 875 days outside Canada during the relevant time period of 1182 days calculated from the date of landing to the date of the citizenship application. The Applicant had spent 307 days in Canada during the relevant time period.
[3] The Citizenship Judge dismissed his application on the basis of the Applicant's failure to accumulate at least three years, that is 1095 days, of residence in Canada within the four years immediately preceding the date of his application for citizenship, as required by paragraph 15(1)(c) of the Citizenship Act, R.S. 1985, c. C-29.
APPLICANT'S SUBMISSIONS
[4] The Applicant now argues that the Citizenship Judge acted improperly in the conduct of the interview concerning his application, proceeding on the basis of an interrogation, rather than as an interview. The Applicant also submits that the Citizenship Judge acted improperly because he telephoned the Applicant on the day following his interview, without prior or any notice to his counsel who had attended the interview with him on October 28, 1999.
[5] Furthermore, the Applicant argues that the Citizenship Judge erred in law by misinterpreting the principles of residence as set out in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177.
RESPONDENT'S SUBMISSIONS
[6] The Respondent argues that there is no evidence of inappropriate or improper conduct by the Citizenship Judge, either at the interview or subsequently in making an alleged telephone call to the Applicant.
[7] The Respondent argued, at the hearing of this application, that according to the Certified Record, the Citizenship Judge had made his decision to reject the Applicant's citizenship application on October 28, 1999. The Respondent relies, in this regard, on a form entitled "Notice to the Minister of the Decision of the Citizenship Judge - Section 5".[1] Consequently, there is no evidence to show any reason for a subsequent telephone call and further, no evidence to show what reliance the Citizenship Judge may have placed on information obtained.
[8] Finally, the Respondent argues that there is no error in the reasons given by the Citizenship Judge in his rejection of the Applicant's citizenship application. The Respondent says that the Citizenship Judge applied the correct legal principles.
ANALYSIS
[9] I decline to address the merits of this appeal because I am of the opinion that it should be allowed on the basis of the Applicant's submissions concerning the impropriety of the telephone call from the Citizenship Judge to him at his home on the day after his interview.
[10] I do not accept the argument of the Respondent that the decision to reject the Applicant's claim had been made on October 28, 1999 and that, as a result, any subsequent telephone call would not affect the fairness of the hearing.
[11] I note that the Respondent took this position only upon hearing of the appeal. In the written Memorandum of Fact and Law filed by the Respondent, the date of the decision under review is said to be January 19, 2000. I am satisfied that January 19, 2000 is the relevant date of the decision.
[12] In her Application Record, the Respondent does not deny that the telephone call was made. Upon the hearing of the appeal, the Respondent attempted to challenge the making of the telephone call on the basis of the date of the decision being October 28, 1999. As noted above, I reject that argument and find that a telephone call was made by the Citizenship Judge on October 29, 1999, as stated in the Affidavit of the Applicant filed on this appeal.
[13] I accept the submissions of the Applicant that such action by the Citizenship Judge is inappropriate and is a basis for allowing this appeal. While the procedure followed by citizenship judges in dealing with citizenship applications may be informal, such informality does not authorize an independent inquiry process by those judges. In this regard, I refer to Cheung (Re) [1995] F.C.J. No. 922 where Justice Rothstein said as follows at paragraph 4:
Furthermore, I think it is questionable practice for the Citizenship Court to obtain information on its own. The function of the Citizenship Court, as I understand it, is to consider the evidence presented and to make a decision on that basis, not to conduct or direct an investigation and utilize the information obtained in the making of a decision.
[14] Although the facts here are not exactly the same as those at issue in Cheung, supra, I am of the opinion that the principle involved is the same. A citizenship judge is required to consider what is before him and not to pursue inquiries independent of the interview conducted by him.
ORDER
[15] The appeal is allowed. The matter is referred to a different citizenship judge for a determination on the merits.
"E. Heneghan"
J.F.C.C.
Ottawa, Ontario
March 22, 2001