CITIZENSHIP AND IMMIGRATION
Status in Canada
Citizens
Appeal against decisions of Citizenship Judge applicant, wife, two sons, all German citizens, not meeting residency requirements of Citizenship Act, s. 5(1)(c)—Came to Canada in 1982, bought home in British Columbia (B.C.)—Applicant founded European businesses in 1969, has since started businesses in B.C., Alberta—Family travels extensively for work, education—Nevertheless family travelling often in Canada, establishing social life in Vancouver—Landed immigrants in 1998, applied for citizenship May 28, 2003 at which date all family members well short of 1095 days residency required by Act, s. 5(1)(c)—Citizenship Judge’s critical analysis deficient such as to constitute reviewable error—Citizenship Judge free to select between following tests: (1) stringent test adopted by Muldoon J. in Pourghasemi (Re) (1993), 19 Imm. L.R. (2d) 259 (F.C.T.D.); (2) Justice Thurlow’s flexible test in Papadogiorgakis (In re) and in re Citizenship Act, [1978] 2 F.C. 208 (T.D.); test proposed by Reed J. in Koo (Re), [1993] 1 F.C. 286 (T.D.)—Citizenship Judge adopting more flexible approach, had to have regard to Thurlow, Reed JJ.’s decisions—Citizenship appeal can be granted for failure to provide proper analysis of evidence—No hard and fast rule important factors have to be addressed in particular manner, order but decision must leave no doubt all important relevant factors addressed—“Citizenship Policy Manual (CP2) on Decision-Making” stating in 1.28 “Giving a conclusion and repeating the criteria set out in the Citizenship Act is not enough. The arguments and the evidence must be discussed. The Judge must then show why the decision was made, and state the evidence supporting the decision”—Fairness requires statement of why any conclusion was reached, difficult as that may be—While Citizenship Judge stated facts found as to each family member, by way of analysis made same statement regarding each and, given facts herein, decision lacked required critical analysis—Obvious Judge’s thinking dominated by lengthy absences from Canada, characterized as “structural” in finding applicants had failed to centralize lives in Canada—This prevented Judge from considering wealth of evidence that, despite significant absences, they had no more substantial connection with any other country and thereby fell into reviewable error—As to breach of natural justice, if interview with Citizenship Judge granted, must be conducted fairly and applicant’s uncontra-dicted evidence was that Judge “indicated before even starting [the] interview that he had already decided that he could not grant us citizenship. . . . He did not give me any chance to explain anything because he made it clear that he had already made up his mind”—Applicant not having reasonable opportunity to persuade Citizenship Judge evidence warranted favourable decision—Obvious Judge not impressed by written material, so critically important to give applicant solid chance to use powers of persuasion to change Judge’s mind, but door to that was closed resulting in natural justice denial—Appeal granted—Sending matter back for redetermination would involve inordinate waste of time, resources, emotional strain— Ample evidence residency established well before citizenship applications filed and, though applicants well under required 1095 days, on flexible approach, could be concluded that throughout four-year period prior to applications applicants possessed sincere intention, made active efforts, to maintain Canadian residence—Though true absences structural, this was dictated by business demands—While travelled around world a great deal, no adherence to any country but Canada as home—Applicants centralized lives here prior to making application—Each family member entitled to citizenship grant —Citizenship Act, R.S.C., 1985, c. C-29 , s. 5(1)(c) (as am. by S.C. 2001, c. 27, s. 228).
Seiffert v. Canada (Minister of Citizenship and Immigration) (T-2227-04, 2005 FC 1072, Campbell J., order dated 5/8/05, 14 pp.)