Date: 19990816
Docket: T-138-99
Ottawa, Ontario, this 16th day of August, 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
JESSE C. STINE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
[1] Jesse C. Stine (Mr. Stine) accompanied his father (Mr. G. Stine) to Canada when he moved to Windsor on January 2, 1995. At the time Mr. Stine was 19 years old, was financially dependent upon his father and was enrolled in a full time course of studies at Emory University in Atlanta, Georgia. After attending to various mundane tasks such as arranging for cable and telephone services for their apartment etc., Mr. Stine left Canada on January 15, 1995 to return to Atlanta to continue his studies. He pursued his studies, both in Atlanta and in Spain (through a program available at Emory University) until April 11, 1997. He returned to Canada for most of his holidays and summer breaks though he remained in Atlanta to work at the Summer Olympics in the summer of 1996. Following graduation, he returned to Canada and has been employed in Canada ever since. When he applied for citizenship on January 16, 1998, he had been physically absent from Canada for 784 of the 1095 days preceding his application. The Citizenship judge denied his application on the basis of his failure to satisfy the residency requirements found at s. 5(1)(c) of the Citizenship Act 1985 c. C-29 (the "Act").
5. (1) The Minister shall grant citizenship to any person who
...
(c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner:
| (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and |
| (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; |
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
...
(c) a été légalement admise au Canada à titre de résident permanent, n"a pas depuis perdu ce titre en application de l"article 24 de la Loi sur l"immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante :
| (i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent. |
| (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; |
[2] Mr. Stine"s affidavit, on which he was not cross-examined, indicates that he attended an interview on November 16. The interview lasted approximately 60 seconds and consisted of the following exchange:
| Judge: I have not reviewed your file. What is your name and address? |
| Jesse: My name is Jesse Stine and my address is 1238 Melville St. Suite 3002, Vancouver B.C. |
| Judge: What is your employment situation? |
| Jesse: I work for B.W. Advisors International, a British Columbia corporation. |
| Judge: I will send you a letter within 7-10 days and another interview is not required. |
[3] The Affidavit filed by the Mr. G. Stine confirms that the applicant completed the interview and walked to a restaurant located four blocks from the Citizenship office in less time than it took him to drive to the restaurant (after having dropped off the applicant) and park the car.
[4] On or about January 6, 1999, Mr. Stine received a letter denying his application for citizenship. The basis of the denial is the failure to meet the residency requirements in the Citizenship Act. Whether this is because of a failure to establish residency in the first instance, or a failure to maintain, it is not clear. Mr. Stine appealed the denial of citizenship to this Court.
[5] One of the grounds of appeal is the brevity and apparent futility of the interview with the Citizenship judge. The basis for such an interview is found in the Citizenship Regulations 1993 SOR/93-246 where the following appears at s. 11(7):
(7) Where it appears to a citizenship judge that the approval of an application referred to the citizenship judge under subsection (5) may not be possible on the basis of the information available, that citizenship judge shall ask the Minister to send a notice in writing by ordinary mail to the applicant, at the applicant's latest known address, giving the applicant an opportunity to appear in person before that citizenship judge at the date, time and place specified in the notice.
(7) Lorsque le juge de la citoyenneté saisi de la demande conformément au paragraphe (5) estime qu'il lui est impossible d'approuver celle-ci sans de plus amples renseignements, il demande au ministre d'envoyer un avis écrit au demandeur à sa dernière adresse connue, par courrier ordinaire, l'informant qu'il a la possibilité de comparaître devant ce juge aux date, heure et lieu qui y sont précisés.
[6] On the basis of the Affidavit evidence before me, it is clear that Mr. Stine never got the benefit of the hearing which the regulations provide for his benefit. The Citizenship Judge was not prepared for the interview and did not give him the opportunity to address the concerns which she subsequently developed about the quality of his attachment to Canada
[7] There is authority in this Court that the length of an interview is not determinative of whether the interview was fair. In Rusli v. M.C.I. [1997] F.C.J. No. 249, Teitlebaum J. held that "It is the content of the interview rather than its length that is a better indicator of whether the rules of fairness and natural justice were respected". Those comments were made in the context of a challenge to a decision of a visa officer. Similar comments were made by Evans J. in Lukic v. M.C.I. , [1999] F.C.J. 325 in the context of an interview with respect to an application for an exemption on humanitarian and compassionate grounds:
| "There is no minimum length of time that an interview must last in order to be fair. Much will obviously depend on the nature of the particular claim being advanced, and the amount of relevant information that already has been communicated to the officer through written submissions, ... and other documentary material" |
[8] In this case, the legislation provides for an interview to be held when there is a question about the acceptability of the candidate"s application for citizenship. It is clearly intended to provide the candidate the opportunity to answer or, at the very least, address the concerns which gave rise to the request for an interview in the first place. When candidates are deprived of that opportunity, they are deprived of a right specifically provided for in the legislation. This is a contrary to law and would, in any event, be a denial of natural justice.
[9] Most of the argument of this matter centered on the question of whether residency had ever been established and, if so, whether it had been maintained, though the question of the adequacy of the interview was also canvassed. Counsel for the respondent took the position that since no new information could have come out of the interview, the failure to provide an adequate interview did not change the end result. I disagree. The purpose of granting an interview is to allow candidates to address the decision maker"s concerns. It is the loss of the opportunity to address the concerns which is of concern to the Court.
[10] The decision of the Citizenship judge denying the applicant citizenship was contrary to law and a denial of natural justice. The decision of Citizenship Judge Pam Glass dated January 6, 1999 must therefore be set aside and the matter remitted to a different citizenship judge for reconsideration.
O R D E R
The decision of Citizenship Judge Pam Glass dated January 6, 1999 is set aside and the matter is remitted to a different citizenship judge for reconsideration.
"J.D. Denis Pelletier"
Judge