Digests

Kor v. Canada (Minister of Citizenship and Immigration)

T-632-99

Pelletier J.

14/2/00

7 pp.

Appeal from dismissal of citizenship application--According to immigration records applicant entering Canada as visitor on February 12, 1990; leaving on February 23, 1994; re-entering on February 7, 1995--Immigration not having record of presence in Canada between February 23, 1994 and February 7, 1995--Applicant deposing left Canada on February 23, 1994, intending to enter United States to make visa application but refused entry; re-entered Canada without record made of entry--Applicant tendering sworn affidavit, business, banking records showing signature on various items throughout period in issue--Claiming purchased, ran smoke shop business in Canada during times of concern--Citizenship Judge finding application premature--If judge rejects uncontradicted evidence, reasons for rejection must be given--Citizenship Judge ignoring evidence suggesting applicant in Canada throughout period following arrival on February 12, 1990; dealing with application solely on basis of time in Canada since date of landing--In so doing, Citizenship Judge either failing to consider evidence before him, or considered it and found it wanting but did not give reasons for doing so--As statutory appeal, question is what remedial powers available to Court sitting as court of appeal--In Ma v. Canada (Minister of Citizenship and Immigration) (1999), 163 F.T.R. 156 (F.C.T.D.) Reed J. holding authority to refer matter back for rehearing inherent in appeal process--Whether power to refer matters back to Citizenship Judge limited to sending matter back for fresh hearing before different judge, or extending to sending matter back to same judge with direction reasons be provided for failure to consider pre-landing evidence of residence--In first case, applicant's relief fresh chance at obtaining citizenship; in second case, result stands, but applicant learning basis on which decision made--May be more economical to send matter back to be heard by different judge--Although possibly resulting in fresh appeal, Court not involved in managing it as would if matter sent back for reasons to be provided--In interests of simplicity, appeal allowed, matter sent back for rehearing before different Citizenship Judge--No order as to costs as difficulties encountered by applicant arising directly from fact of illegal status in Canada prior to February 7, 1995--If re-entered Canada as he says he did on February 23, 1994, absence of record may be due to fact not entitled to re-enter Canada.