Federal Court

Administrative Law

Switching of test once condition precedent met yielded breach of procedural fairness

Applicant was permanent resident. Applicant was abroad for vast majority of time on exchange program in Germany as part of her degree from university. Remainder of time abroad was spent visiting family in China. Citizenship Judge determined applicant did not accumulate requisite number of days of residence required and denied applicant’s citizenship application. Applicant appealed and matter was sent back for redetermination. Second judge advised applicant that if he found she was in Canada for 938 days she would receive positive decision. Judge found applicant was not in Canada for 1095 days. According to written decision and evidence applicant spent 938 days in Canada. Judge declined to make favourable recommendation for discretionary grant of citizenship. Applicant sought judicial review. Application granted. Switching of test once condition precedent was met resulted in breach of applicant’s legitimate expectation and yielded breach of procedural fairness. Applying differed citizenship test than that which was promised at hearing, when such decision was discretionary would not reach high threshold of bad faith. Applicant understood which test would be applied and governed herself accordingly.

Qin v. Canada (Minister of Citizenship and Immigration) (Sep. 10, 2014, F.C., Alan Diner J., File No. T-290-14) 245 A.C.W.S. (3d) 521.

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