Date: 20061129
Docket: T-908-06
Citation: 2006 FC 1439
BETWEEN:
IVAN
TULUPNIKOV
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT
GIBSON J.
Introduction
[1]
These
reasons follow the hearing of an appeal pursuant to subsection 14(5) of The
Citizenship Act(the “Act”) from a decision
of a Citizenship Judge (the “Judge”) whereby the Judge declined to approve the
Applicant’s application for Canadian citizenship “…because you [the Applicant] have not
met the residence requirement under paragraph 5(1)(c) of the Act.” The
decision under appeal is dated April 4, 2006.
BACKGROUND
[2]
The
Applicant was born in the Union of Soviet Socialist Republics on the 13th
of August, 1975. He is a citizen of the Russian Federation and of no
other country.
[3]
The
Applicant’s mother and his father divorced. The Applicant’s mother remarried
to a Canadian citizen and, at all relevant times, she and her husband lived in Canada.
[4]
The
Applicant alleges that he came to Canada to stay on the 19th
of September, 1998 on a student authorization. He further alleges that prior
to that date, he had entered Canada several times on valid visas. He remained
in Canada until late
December, 2000 on a further student authorization. On the 23rd of
December, 2000 he became a permanent resident of Canada.
[5]
Until
the Applicant obtained permanent resident status, he studied at a range of
academic institutions in Canada including McGill University
in Montreal from which
he obtained a masters degree in Architecture. After obtaining his permanent
resident status, he worked for various Canadian-based employers.
[6]
On
the 18th of August, 2001, the Applicant married in Toronto. He
submitted a family class sponsorship for his wife who, under the authority of
that sponsorship, became a permanent resident of Canada on the 29th
of September, 2003.
[7]
The
Applicant applied for Canadian citizenship on or about the 22nd of
November, 2003. He alleges that he had been physically present in Canada for a total
of 840 days between the 22nd of November, 1999 and the 22nd
of November, 2003.
THE DECISION UNDER
REVIEW
[8]
The
Judge interviewed the Applicant on the 9th of November, 2005. At
the close of the interview, the Judge requested that the Applicant provide
additional documentation to support his application. The form used to record
the request was signed by both the Judge and the Applicant. It included the
following acknowledgement by the Applicant:
I understand that should
such documentation not be provided my Citizenship Application will be
non-approved by a Judge.
The Applicant provided documentation, as
requested. The Judge was apparently not satisfied with the documentation
provided. He requested further documentation and the Applicant responded.
The decision under review followed.
[9]
In
the decision under review,
the Judge wrote:
Subsection 5(1)(c) of
the Citizenship Act requires the accumulation of at least three years of
residence in Canada within the four years immediately preceding the date of
application in the manner prescribed by that subsection of the Act. You stated
in your application that you were physically present in Canada for 748 days
during the relevant period and absent for 515 days. You are 347 days short of
the minimum requirement of 1,095 days as prescribed in paragraph 5(1)(c) of the
Act (Total number of days in Canada is 1263 based on your application dated
November 22, 2003).
While the physical presence of 748 days
referred to is less than that attested to by the Applicant and earlier referred
to, nothing turns on that difference. The difference between 748 days presence
and 1263 days in Canada is accounted for by the fact that each day
present before acquiring permanent resident status only counts as one-half day.
[10]
The
Judge then went on to comment at some length, and critically, regarding the
documentation provided by the Applicant. Following that commentary, under the
heading “Decision:” the Judge concluded with the words earlier quoted in these
reasons. The Judge noted that he had considered the possibility of a
favourable discretionary recommendation under subsection 5(3) or 5(4) of the
Act and that he concluded against such a favourable recommendation. His
conclusion in that regard was not in dispute before the Court.
ANALYSIS
Standard of Review
[11]
It
was not in dispute for the Court that the appropriate standard of review on an
appeal such as this is reasonableness simpliciter.
I am satisfied that, applying a pragmatic and functional analysis in this
matter, there is nothing that would justify a variation from that standard.
The Substantive Issues
[12]
Counsel
for the Applicant raised the following issues before the Court: first, whether
the learned Judge failed to clearly select and apply an appropriate test to
determine whether the Applicant had met the residency requirement as set out in
paragraph 5(1)(c) of the Act; secondly, whether the Judge failed to
consider the totality of the evidence that was before him when he rendered his
decision as to whether the Applicant had met the residency requirement; and
finally, whether the Judge failed to provide adequate reasons as to why the
Applicant did not meet the residency requirement.
Selection and
Application of an Appropriate Test and Failing to Consider the Totality of the
Evidence
[13]
In
Ahmed v. Canada (Minister of Citizenship and Immigration), my colleague
Justice Layden-Stevenson wrote at para. 4 of her reasons:
Because the “issue”
regarding the divergence of opinion in Federal Court jurisprudence with respect
to the residency requirement of the Act inevitably surfaces during argument on
citizenship appeals, I believe that it is beneficial to distinguish between the
instances when that issue has relevance and when it does not. In my view, the
“issue” regarding the divergence of opinion Federal Court jurisprudence is not
relevant to the issue of whether an appellant has established a residence in Canada. In Goudimenko
v. Canada (Minister of
Citizenship and immigration)…the appellant argued that his absences for
school ought to have been deemed residence. At paragraph 13, I stated:
The difficulty with the
appellant’s reasoning is that it fails to address the threshold issue, his
establishment of residence in Canada. Unless the threshold test is met,
absences from Canada are
irrelevant; Canada (Secretary
of State) v. Yu …; Re Papadorgiorgakis, …; Re Koo, …; Re Choi …. In other
words, a two stage inquiry exists with respect to the residence requirements of
paragraph 5(1)(c) of the Act. At the first stage, the threshold determination
is made as to whether or not, and when, residence in Canada has been
established. If residence has not been established, the matter ends there. If
the threshold has been met, the second stage of the inquiry requires a
determination of whether or not the particular applicant’s residency satisfied
the required total days of residence. It is with respect to the second stage
of the inquiry, and particularly with regard to whether absences can be deemed
residence, that the divergence of opinion in the Federal Court exits.
[citations
omitted]
[14]
While
the decision here under appeal does not explicitly provide that residence of
the
Applicant in Canada was
established before the Judge, I am satisfied that a finding of establishment
of residence is implicit and my conclusion
in that regard was not in dispute. Thus, the Judge turned directly to the
second stage of the inquiry, that is, a determination of whether or not the
Applicant’s residency satisfied the required total days of residence. It is in
this regard that the divergent views of this Court are exemplified by the
decisions in Re Pourghasemi, Re Papadogiorgakisand
Re Kooarises.
[15]
In
Hsu v. Canada (Minister of Citizenship and Immigration) , my colleague
Justice Heneghan wrote at paragraph 4 of her reasons:
The case law on
citizenship appeals has clearly established that there are three legal tests
which are available to determine whether an applicant has established residence
within the requirements of the Citizenship Act…. In this regard, see Lam v.
Canada (Minister of Citizenship and Immigration)…According to that case, a
Citizenship Judge may adopt either the strict count of days, consideration of
the quality of residence or, analysis of the centralization of an applicant’s
mode of existence in this country.
[Citations
omitted]
[16]
The
threes tests described by Justice Heneghan equate to the Pourghasemi, Papadogiorgakis
and Koo tests mentioned earlier.
[17]
It
was not in dispute before the Court that, while a Citizenship Judge may choose
to rely on any one of the three tests, it is not open to him or her to “blend”
the tests. Counsel for the Applicant here urged that the Judge erred in a
manner that would justify granting this appeal in failing to identify which of
the three tests he relied on and further, in “blending” the Pourghasemi
test with elements of the other two tests. Counsel urged that by citing a
strict count of days conclusion and then going on to refer at significant
length and in a critical manner to the Applicant’s documentary evidence, the Judge
clearly engaged in a “blending” of tests.
[18]
I
reach a different conclusion. The Judge had clearly, by the close of his
interview with the Applicant, reached a conclusion that the Applicant could not
succeed on the basis of a strict count of days test. As earlier indicated in
these reasons, he invited the Applicant to submit documentation and advised the
Applicant that, if he did not do so, his application for Canadian citizenship
must fail. The Judge considered the documentation submitted and, as reflected
in his decision letter, clearly found it unsatisfactory to support a
determination favourable to the Applicant under either of the more flexible
tests. Thus, and I regard this to be apparent on the face of the decision
letter, he reverted to the “strict count of days” test to reject the Applicant’s
application. He did not “blend” or confuse the tests. Further, I find no
basis on which to conclude that the Judge ignored any of the documentary
evidence that was before him.
Adequacy of Reasons
[19]
Counsel
for the Applicant urged that, against the reasoning of Justice Pelletier, as he
then was, adopting the reasoning of the New Brunswick Court of Appeal in Boyle
v. New Brunswick (Workplace Health, Safety and Compensation Commission) wherein
it was held that merely listing the evidence considered was not sufficient, but
rather that reasons must explain to the parties why the tribunal decided as it
did and must also be sufficient to enable an appeal court to discharge its
appellate function, the decision letter here under consideration was simply
inadequate as reasons. Once again, in Ahmed v. Canada (Minister of
Citizenship and Immigration)
Justice Layden-Stevenson wrote at paragraph 13 of her reasons:
In R. v. Sheppard…, the
Supreme Court of Canada discussed the adequacy of reasons. Although decided in
the context of criminal law, the principles enunciated in Sheppard can be
modified, as required, to fit the context of any number of matters. The
Supreme Court held that the requirement of reasons is tied to their purpose and
the purpose varies with the context. For purposes of citizenship appeals, I
consider the following propositions from Sheppard, modified as required for the
context, to be applicable:
(a) The delivery
of reasoned decisions is inherent in the judge’s role.
(b) An
unsuccessful applicant should not be left in doubt as to why he or she was not
successful.
(c) Lawyers for
parties may require reasons to assist them in considering and advising with
respect to a potential appeal.
(d) Not every
failure or deficiency in the reasons provides a ground of appeal.
(e) Reasons
provide an important function in the Appellate process. Where the functional
needs are not satisfied, the Appellate Court may conclude there is an error of
law depending on the circumstances of the case and the nature and importance of
the decision being rendered.
(f) The judge is
not held to some abstract standard of perfection.
(g) The judge’s
duty is satisfied by reasons which are sufficient to serve the purpose for
which the duty is imposed, i.e., a decision which, having regard to the
particular circumstances of the case, is reasonably intelligible to the parties
and provides the basis for meaningful appellate review of the correctness of
the judge’s decision.
(h) While it is
presumed that judge’s know the law with which they work day in and day out and
deal competently with the issues of fact, the presumption is of limited
relevance. Even learned judges can err in particular cases, and it is the correctness
of the decision in a particular case that the parties are entitled to have
reviewed by the appellate court.
(i)
Where
the decision is deficient in explaining the result to the parties, but the
appeal court considers itself able to do so, the appeal court’s explanation in
its own reasons, is sufficient. There is no need in that case for a new
hearing.
[citation
omitted]
[20]
I
note in particular paragraph (f) in the foregoing quotation:
The judge is not held to
some abstract standard of perfection.
[21]
The
reasons for decision here under consideration fall short of meeting “…some
abstract standard of perfection”, but that is not the test. I am satisfied
that the reasons for decision here under consideration are sufficient to
fulfill each of the foregoing propositions. In brief: the
reasons clearly and succinctly demonstrate
the Judge’s conclusion that, against the “strict count of days” test, that is
to say the Pourghasemi test, the Applicant’s application for Canadian
citizenship must fail. The fact that the Judge then goes on to comment
extensively on the documentary evidence provided by the Applicant is irrelevant
to the decision except in so far as it serves to explain why the Judge chose
not to, or perhaps felt compelled not to, adopt the “quality of residence” test
or the “centralization of mode of existence” test, both of which were open to
him as alternatives to the “strict count of days” test. That the Judge then
went on, without reference back to his conclusion on the “strict count of days”
test, to conclude that he was unable to approve the Applicant’s application
because the Applicant had not met the residence requirement under paragraph
5(1)(c) of the Act, is entirely insufficient, if indeed, it is confusing
at all, to justify allowing this appeal.
[22]
In
short, I find the reasons provided by the learned Judge for his decision to be
entirely adequate, albeit that that they are somewhat short of some “abstract
standard of perfection”.
Conclusion
[23]
For
the foregoing reasons, as summarized to counsel at the close of hearing, this
Appeal will be dismissed.
“Frederick
E. Gibson”
Ottawa, Ontario
November
29, 2006
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