Yang v. Canada (Minister of Citizenship and Immigration), 2009 FC 1153

• Judge: Mandamin, J.
• Court: Federal Court (Canada)
• Case Date: October 28, 2009
• Jurisdiction: Canada (Federal)
• Citations: 2009 FC 1153;(2009), 361 F.T.R. 30 (FC)

Yang v. Can. (M.C.I.) (2009), 361 F.T.R. 30 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. NO.030

Ding Yan (applicant) v. Minister of Citizenship and Immigration (respondent)

(T-984-08; 2009 FC 1153)

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

Federal Court

Mandamin, J.

November 12, 2009.

Summary:

Yang appealed a citizenship judge's refusal of his citizenship application.

The Federal Court allowed the appeal and remitted the matter for redetermination before a different citizenship judge. The court awarded Yang costs.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - Yang applied for citizenship - He was 36 days short of the minimum residency requirement and requested that the citizenship judge consider the centralized mode of living test - The judge reserved his decision and requested additional documentation - The judge concluded that Yang had not met the residence requirements and dismissed the application - The Federal Court allowed an appeal - The judge appeared to be considering the centralized mode of living test when he reserved his decision and requested more documents - He then appeared to revert to a strict count of days - While citizenship judges could select which test to apply, the applicants were entitled to clear and meaningful reasons - The court could not say whether the centralized mode of living approach was rejected because Yang gave an apparent waiver or because the documents and other information were inadequate - If it was rejected based on the former, the judge erred since he was duty bound to consider the application - The judge's use of the formalistic phrase "For reasons above" did not inform Yang in any meaningful way how the application was deficient - The judge erred by not providing clear and meaningful reasons - See paragraph 26 to 33.

Aliens - Topic 2503

Naturalization - General Duty of authorities to process applications - Yang applied for citizenship - He had been physically present in Canada 1059 days, 36 days short of the minimum 1095 days required in a four year period (Citizenship Act, s. 5(1)(c)) - After a 15 month unexplained delay, the citizenship judge refused the application - Section 14(1)(a) of the Citizenship Act provided that the judge "shall" render a decision within 60 days - Yang appealed, asserting that the judge lost jurisdiction - Yang claimed that he was prejudiced by the delay since he left Canada shortly after the hearing to work for his family in China and, by implication, he lost the opportunity to remedy the 36 day shortfall by staying in Canada - The Federal Court concluded that the 60 day requirement was directory and the citizenship judge did not lose jurisdiction because of the delay - The court allowed the application on other grounds and remitted the matter for a rehearing - The court stated that the breach of s. 14(1)(a) was a breach of a procedural right and could not give rise to a substantive right - As a remedy for the breach, the court awarded Yang costs - See paragraphs 16 to 25, 34 and 37 to 39.

Aliens - Topic 2510

Naturalization - General - Duties of Citizenship judge - [See Administrative Law - Topic 549 ].

Aliens - Topic 2525

Naturalization - Qualifications - Residence - [See Administrative Law - Topic 549 ].

Practice - Topic 12

General principles and definitions - Substantive versus procedural rules or rights - [See Aliens - Topic 2503 ].

Statutes - Topic 2418

Interpretation - Interpretation of words and phrases - General principles - "Should" and "shall" - [See Aliens - Topic 2503 ].

Statutes - Topic 5164

Operation and effect - Enabling Acts - Directory Acts - What constitutes - [See Aliens - Topic 2503 ].

Cases Noticed:

Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 (T.D.), refd to. [para. 13].

Mizani v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 458; 2007 FC 698, refd to. [para. 14].

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. 15].

Chung, Re, [1998] F.T.R. Uned. 297 (T.D.), refd to. [para. 19].

Sahota v. Canada (Minister of Citizenship and Immigration) (2004), 245 F.T.R. 234; 2004 FC 52, refd to. [para. 20].

McMahon v. Canada (Attorney General) (2004), 252 F.T.R. 1; 2004 FC 540, varied (2005), 332 N.R. 107; 2005 FCA 33, refd to. [paras. 22, 23].

Hsu, Re (1999), 167 F.T.R. 72; 2001 FCT 579, refd to. [para. 27].

Tulupnikov v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 835; 2006 FC 1439, refd to. [para. 28].

Mueller v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 682; 2008 FC 961, refd to. [para. 29].

Chowdhury v. Canada (Minister of Citizenship and Immigration) (2009), 347 F.T.R. 76; 2009 FC 709, refd to. [para. 31].

Ho, Re (1997), 135 F.T.R. 309 (T.D.), refd to. [para. 34].

Statutes Noticed:

Citizenship Act, R.S.C. 1985, c. C-29, sect. 14(1)(a) [para. 17].

Authors and Works Noticed:

Maxwell, Peter Benson, Interpretation of Statutes, generally [para. 21].

Counsel:

Mary Lam, for the applicant;

David Knapp, for the respondent.

Solicitors of Record:

Cecil L. Rotenberg, Toronto, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This appeal was heard at Toronto, Ontario, on October 28, 2009, by Mandamin, J., of the Federal Court, who delivered the following reasons for judgment on November 12, 2009.