Chiu v. Canada (Minister of Citizenship and Immigration)
Court headnote
Chiu v. Canada (Minister of Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2005-07-26 Neutral citation 2005 FC 1036 File numbers T-1700-04 Decision Content 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…
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Chiu v. Canada (Minister of Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2005-07-26 Neutral citation 2005 FC 1036 File numbers T-1700-04 Decision Content 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
Source: decisions.fct-cf.gc.ca