Date: 19980408
Docket: T-1532-97
IN THE MATTER OF THE CITIZENSHIP ACT,
R.S.C. 1985, c. C-29
AND IN THE MATTER OF an appeal from the
decision of a Citizenship Judge
AND IN THE MATTER OF
LING WAH PHYLLIS KU,
Appellant.
REASONS FOR JUDGMENT
Nadon J.
[1] This is an appeal brought pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act") . The issue here is whether the Citizenship Judge gave an oral decision at the hearing and, if so, whether a subsequent written decision which contradicts the oral decision should be upheld. This appeal is from the written decision delivered on June 17, 1997 by Judge Meagher which dismissed the appellant"s application for citizenship.
[2] As the Citizenship Judge correctly stated in his decision, paragraph 5(1)(c) of the Act requires an appellant for citizenship to have been resident in Canada for 1095 days of the four years immediately preceding the application. In this case Mrs. Ku, the appellant, is 964 days short of that goal. The burden was therefore on the appellant to prove that her absences could nevertheless be considered as days of residence in Canada.
[3] At the hearing before me, the appellant and the lawyer who represented her before the Citizenship Judge testified. Their evidence, which was consistent, was that, at the conclusion of the hearing, the Citizenship Judge informed Mrs. Ku that she would have no problem with her application. This directly contradicts the decision rendered in June 1997 that, although there was some evidence that "a Canadian centrality of living was established", the appellant did not prove that this centrality of living had been maintained. The letter indicated that citizenship had been denied to Mrs. Ku.
[4] In the recent case of Karic v. Canada (MCI) (26 March 1998), Ottawa T-1291-97 (F.C.T.D.), McGillis J. was faced with a similar issue and, for the reasons given by McGillis J., I will allow this appeal.
[5] Subsection 14(2) of the Act requires that a citizenship judge decide the citizenship application "in accordance with his determination". From the facts as presented Judge Meagher had made his determination at the time when he informed Mrs. Ku that there would be no problem with her application. However, Mrs. Ku"s application was denied. On these facts the determination made by Judge Meagher in his letter of June 1997 cannot be said to be in accordance with his original determination of the issue at the end of the hearing. As stated by McGillis J., this constitutes a breach of an express statutory duty.
[6] In the result the appeal is allowed and the written decision of Citizenship Judge Meagher dated June 17, 1997 is quashed. I have only one further point to add. The file contains a written note from Citizenship Judge Meagher which purports to be "testimony under oath" and is signed by Judge Meagher and a witness. In the note Judge Meagher denies that he orally approved the application of Mrs. Ku. Judge Meagher was not cross-examined nor did he testify before me. This note is not properly in evidence. Although it purports to be testimony under oath, it clearly is not. I have not taken this note into consideration in any way and I rely solely on the proper evidence and testimony before me.
[7] As was done by my colleague McGillis J. In Karic, the Minister of Citizenship and Immigration shall be deemed to be notified as of today that Citizenship Judge Meagher approved the application of Mrs. Ku.
"MARC NADON"
Judge
Ottawa, Ontario
April 8, 1998