Korolove v. Canada (Minister of Citizenship and Immigration), (2013) 430 F.T.R. 283 (FC)

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: February 28, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 430 F.T.R. 283 (FC);2013 FC 370

Korolove v. Can. (M.C.I.) (2013), 430 F.T.R. 283 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. AP.016

Ayelete Korolove (applicant) v. The Minister of Citizenship and Immigration (respondent)

(T-1157-12; 2013 FC 370; 2013 CF 370)

Indexed As: Korolove v. Canada (Minister of Citizenship and Immigration)

Federal Court

Strickland, J.

April 12, 2013.

Summary:

Korolove, an Israeli citizen, appealed the decision of a citizenship judge denying her application for citizenship. The denial was on the grounds that Korolove did not satisfy the residency requirement of s. 5(1)(c) of the Citizenship Act.

The Federal Court allowed the appeal and returned the matter for a new hearing by a different citizenship judge.

Aliens - Topic 2510

Naturalization - General - Duties of citizenship judge (incl. duty re reasons) - Korolove, an Israeli citizen, applied for citizenship - In her application, Korolove calculated that she had been absent from Canada for 96 days and therefore present for 1,134 days during the relevant residency period - This exceeded the required 1,095 days - In its written submissions, the Minister reviewed Korolove's travel history and generated a detailed table that demonstrated Korolove had been absent for at least 180 days - The citizenship judge determined that she had been absent for at least 171 days, and therefore had only been present in Canada for 1,010 days - He denied the application on the grounds that Korolove had not satisfied the residency requirement - Korolove appealed - The Federal Court allowed the appeal - The citizenship judge's reasons gave absolutely no indication as to how he arrived at 171 days - Although his conclusion might be supported by the record (the Minister's submissions), it was the citizenship judge's role, not the Minister's or the court's, to explain the decision - The court could not undertake its own assessment of the record and attribute a justification to the citizenship judge - Such "reverse-engineering" of the citizenship judge's decision crossed the line between supplementing and substituting reasons - The citizenship judge's decision was not justified, transparent or intelligible - It was therefore unreasonable - See paragraphs 23 to 47.

Aliens - Topic 2565

Naturalization - Appeals and judicial review - Evidence - Korolove, an Israeli citizen, applied for citizenship - A citizenship judge denied the application on the grounds that Korolove had not satisfied the residency requirement - Korolove appealed and sought to file additional evidence in the form of an affidavit and attached documents that were described as business records - She submitted that this did not constitute new evidence because it would assist the court in understanding the relevant dates - The Federal Court refused to consider the additional evidence - Citizenship appeals were to be decided on the basis of the record that was before the citizenship judge - New evidence that was not before the decision-maker would only be admissible where a breach of natural justice or procedural fairness was alleged, and that was not the case here - See paragraphs 49 to 53.

Cases Noticed:

Pourghasemi, Re (1993), 62 F.T.R. 122 (T.D.), refd to. [para. 8].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 11].

Zhou v. Canada (Minister of Citizenship and Immigration) (2013), 425 F.T.R. 73; 2013 FC 19, refd to. [para. 12].

Burch v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 858; 2011 FC 1389, refd to. [para. 12].

Pourzand v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 276; 2008 FC 395, refd to. [para. 12].

Rizvi et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. B28; 2005 FC 1641, refd to. [para. 12].

Ghosh v. Canada (Minister of Citizenship and Immigration) (2013), 429 F.T.R. 150; 2013 FC 282, refd to. [para. 13].

El Ocla v. Canada (Minister of Citizenship and Immigration) (2011), 389 F.T.R. 241; 2011 FC 533, refd to. [para. 13].

Lin (C.S.) v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 262; 2002 FCT 346, refd to. [para. 13].

Islam v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 9; 2009 FC 10, dist. [para. 20].

Canada (Minister of Citizenship and Immigration) v. Baron (2011), 388 F.T.R. 261; 2011 FC 480, refd to. [para. 25].

Canada (Minister of Citizenship and Immigration) v. Jreige (1999), 175 F.T.R. 250 (T.D.), refd to. [para. 27].

Bogdanovich v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 104; 2002 FCT 181, refd to. [para. 27].

Nguyen v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 863; 2009 FC 1244, refd to. [para. 29].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 34].

Baig v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 429; 2012 FC 858, refd to. [para. 34].

Singh (Jasbir) v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 489; 2008 FC 673, refd to. [para. 40].

Szabo et al. v. Canada (Minister of Citizenship and Immigration) (2012), 422 F.T.R. 152; 2012 FC 1422, refd to. [para. 43].

Kane v. Canada (Attorney General) et al. (2012), 437 N.R. 206; 2012 SCC 64, refd to. [para. 44].

Chaudhry v. Canada (Minister of Citizenship and Immigration) (2011), 384 F.T.R. 117; 2011 FC 179, refd to. [para. 50].

Canada (Minister of Citizenship and Immigration) v. Wang (2009), 360 F.T.R. 1; 2009 FC 1290, refd to. [para. 51].

Hao v. Canada (Minister of Citizenship and Immigration) (2011), 383 F.T.R. 125; 2011 FC 46, refd to. [para. 51].

Sotade v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 184; 2011 FC 301, refd to. [para. 51].

El-Khader v. Canada (Minister of Citizenship and Immigration) (2011), 386 F.T.R. 142; 2011 FC 328, refd to. [para. 51].

Ye v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 818; 2011 FC 1337, refd to. [para. 51].

Canada (Minister of Citizenship and Immigration) v. Willoughby (2012), 408 F.T.R. 213; 2012 FC 489, refd to. [para. 51].

Saifee et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 384; 2010 FC 589, refd to. [para. 52].

Authors and Works Noticed:

Dyzenhaus, David, The Politics of Deference: Judicial Review and Democracy, in The Province of Administrative Law (1997), p. 304 [para. 37].

Counsel:

Nikolay Chsherbinin, for the applicant;

Ildiko Erdei, for the respondent.

Solicitors of Record:

Nikolay Chsherbinin, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This appeal was heard at Toronto, Ontario, on February 28, 2013, before Strickland, J., of the Federal Court, who delivered the following judgment and reasons for judgment on April 12, 2013.