Date: 20051122
Docket: T-842-05
Citation: 2005 FC 1579
BETWEEN:
BUANA
TSHIMANGA
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
PAUL U.C. ROULEAU, Deputy Judge
[1]
This is an
appeal from the decision of the Citizenship Judge, dated March 10, 2005,
denying citizenship to the applicant, Buana Tshimanga, because he did not
fulfil the requirements of paragraph 5(1)(c) of the Citizenship Act.
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5. (1) The
Minister shall grant citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(c) is a permanent resident within the meaning of
subsection 2(1) of the Immigration and Refugee Protection Act, and
has, within the four years immediately preceding the date of his or her
application, accumulated at least three years of residence in Canada
calculated in the following manner:
(i) for every day during which the person was resident in Canada
before his lawful admission to Canada for permanent residence the person shall
be deemed to have accumulated one-half of a day of residence, and
(ii) for every day during which the person was resident in
Canada after his lawful admission to Canada for permanent residence the
person shall be deemed to have accumulated one day of residence;
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5. (1) Le ministre
attribue la citoyenneté à toute personne qui, à la fois :
a) en fait la demande;
b) est âgée d'au moins dix-huit ans;
c) est un résident permanent au sens du paragraphe 2(1) de la Loi
sur l'immigration et la protection des réfugiés et a, dans les quatre ans
qui ont précédé la date de sa demande, résidé au Canada pendant au moins
trois ans en tout, la durée de sa résidence étant calculée de la manière
suivante :
i) un demi-jour pour chaque jour de résidence au Canada avant
son admission à titre de résident permanent,
ii) un jour pour chaque jour de résidence au Canada après son
admission à titre de résident permanent;
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[2]
The
applicant is a citizen of the People’s Republic of Congo and arrived in Canada
on September 24, 1999. He obtained refugee status in Canada and became a
permanent resident on August 15, 2000.
[3]
He
submitted an application for citizenship on July 2, 2003, which means that the relevant
residence period began on July 3, 1999.
[5]
From the
decision, the Court must resolve the following three issues: first, whether the
new sworn evidence of June 11, 2005 is admissible in an appeal under subsection
14(5) of the Citizenship Act; second, whether the Citizenship Judge, in
fact, assessed the evidence in a patently unreasonable manner; and, finally,
whether there was a reasonable apprehension of bias on the part of the
Citizenship Judge.
[7]
Second,
the applicant alleges that the judge had a duty to inform him that the FOSS
system contained information that, in the opinion of the person who entered the
information, prevented him from being granted citizenship. The judge allegedly
received this information between the appearance date, December 2, 2004, and
the decision date, March 10, 2005. The applicant points out that the computer
note dated December 3, 2004 demonstrates that the judge would have denied him
citizenship even before he had a chance to hand in his questionnaire on
December 6, 2004. According to the applicant, when the Citizenship Judge was
informed of the note, he had a duty to inform the applicant of its contents.
Therefore, the process of granting citizenship is invalidated by the note dated
December 3, 2004.
[8]
A
priori,
the respondent asserts that the applicant cannot submit new evidence in support
of his appeal. Accordingly, all the additional evidence submitted by the
applicant must be rejected under section 317 of the Federal Courts Rules.
[9]
In
response to the applicant’s allegation that the Citizenship Judge had not
advised him of the need to submit his passports, the respondent asserts that,
when the Citizenship Judge asked him to complete the form and to return it with
any documents establishing that he lived in Canada, he informed the applicant
of his doubts in a reasonable manner.
[10]
Finally,
the respondent asserts that no principles of natural justice were breached by
the fact that the applicant was not informed of the judge’s concerns or the
FOSS notes. According to the respondent, the determination that the applicant
had a diplomatic passport did not alter the fact that the applicant failed to
provide significant evidence for the Citizenship Judge’s review. The
respondent considers the allegations of reasonable apprehension of bias to be
unfounded.
[11]
In order
to answer the preceding questions, we must begin by determining the applicable
standard of review. While the applicant does not raise the applicable standard
of judicial review, the respondent claims that it should be that of patent
unreasonableness.
[12]
In the
past, the applicable standard of review for an appeal from the decision of a
citizenship judge was that of correctness; see Lam v. Canada (M.C.I.)
(1999), 164 F.T.R. 177; F.C.J. No. 410 (QL). However, at paragraphs 14 to 18
of Lama v. Canada (M.C.I.), [2005] F.C.J. No. 578 (QL), de Montigny J.
describes the evolving case law concerning the standard of review for a
citizenship judge’s decision:
¶ 14 To answer that question, the
applicable standard of review must first be determined. In the past, certain
judges relied on the decision by Lutfy J. (as he then was) in Lam v. Canada
(M.C.I.), ([1999] F.C.J. No. 410) to determine that the appropriate
standard of review for an appeal of a decision by a citizenship judge was that
of correctness.
¶ 15 More recently, there appears
to have been a consensus on the standard of reasonableness simpliciter
(see inter alia the following cases: Chen v. Canada (Minister of Citizenship and
Immigration) 2004 FC 1693,
[2004] F.C.J. No. 2069; Rasaei v. Canada (Minister of Citizenship and
Immigration) 2004 FC 1688, [2004] F.C.J. No. 2051; Gunnarson
v. Canada (Minister of Citizenship and Immigration) 2004 FC 1592, [2004] F.C.J. No. 1913; Canada (Minister of Citizenship and Immigration) v.
Chen 2004 FC 848, [2004]
F.C.J. No. 1040; Canada (Minister of Citizenship and Immigration) v. Fu 2004 FC 60, [2004] F.C.J. No. 88; Canada (Minister of Citizenship and Immigration) v.
Chang 2003 FC 1472, [2003]
F.C.J. No. 1871; Canada (M.C.I.) v. Mueller,
[2005] F.C. 227.
¶ 16 My colleague Tremblay-Lamer
J. justified this approach as follows:
In the case at bar,
where the court must verify that the Citizenship Judge has applied one of the
accepted residency tests to the facts it raises, in my view, a question of
mixed fact and law (Director of Investigation and Research v. Southam Inc., [1997] 1 S.C.R. 748).
Taking into account that some degree of deference is owed to the specialized
knowledge and experience of the Citizenship Judge, I would conclude that the
applicable standard of review is that of reasonableness simpliciter. (Canada (M.C.I.) v. Fu, [2004] F.C.J. No. 88, at paragraph
7).
¶ 17
Considering the
pragmatic and functional approach developed by the Supreme Court of Canada, inter
alia in Dr. Q v. College of Physicians and Surgeons of British
Columbia, [2003] 1 S.C.R. 226
and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, it is my opinion
that this standard of review is in fact the most appropriate in the
circumstances. Accordingly, it would be appropriate to show deference to the
extent that it is established that the judge understood the case law and that
he weighed the facts and applied them to the test provided under the Act.
¶ 18
A careful review of this Court's case law indicates that different interpretations
have been accepted regarding the interpretation that must be given to the
residency requirement found under paragraph 5(1)(c) of the Act. A
Citizenship Judge can adopt any of these different interpretations to determine
whether the applicant meets the requirements of the Act; insofar as the judge
has not made any unreasonable error in applying this interpretation to the
evidence that was submitted to him, this Court will not intervene.
[13]
Before
analysing the specific allegations of each party in depth, it should be noted
that, in a hearing before a citizenship judge, the applicant must discharge the
burden of demonstrating that he has met all the conditions set out in
subsection 5(1) of the Citizenship Act in order to be granted Canadian
citizenship.
[14]
The
applicant made the point that he had not had an opportunity to lead all his
evidence because he was unaware of the Citizenship Judge’s concerns. This
evidentiary issue must be assessed in a two-part process.
[15]
First, we
must address the respondent’s argument concerning the admissibility of the new
evidence. The respondent cites Gitxsan Treaty Society v. Hospital
Employees’ Union, [2000] 1 F.C. 135 to support his
claim that this Court should not entertain new evidence, referring specifically
to the judge’s assertion at paragraph 15:
In my respectful view, the same principle is applicable
in this Court. The essential purpose of judicial review is the review of
decisions, not the determination [page 145], by trial de novo, of
questions that were not adequately canvassed in evidence at the tribunal or
trial court. The latter is what the applicant is inappropriately proposing for
this judicial review. This is not the necessity to which Lord Sumner was
referring in Nat Bell Liquors, supra. The Court will not
entertain new evidence in these circumstances.
[16]
I concur
with the case law cited by the respondent. The role of this Court is not to
assess new evidence. Moreover, this principle is fundamental to the judicial
review process and was confirmed by Létourneau J. at paragraph 11 of Bekker
v. Canada (2004), 323 N.R. 195; F.C.J. 819 (QL):
¶ para. 11] Judicial
review proceedings are limited in scope. They are not trial de novo
proceedings whereby determination of new issues can be made on the basis of
freshly adduced evidence. As Rothstein J.A. said in Gitxsan Treaty Society v. Hospital Employees' Union, [2000] 1 F.C.
135, at paragraph 15, "the essential purpose of judicial review
is the review of decisions" and, I would add, to merely ascertain their
legality: see also Offshore Logistics Inc. v. Intl. Longshoremen's
Assoc. 269 (2000), 257 N.R. 338 (F.C.A.). This is the reason why,
barring exceptional circumstances such as bias or jurisdictional questions,
which may not appear on the record, the reviewing Court is bound by and limited
to the record that was before the judge or the Board. Fairness to the parties
and the court or tribunal under review dictates such a limitation. Thus, the
very nature of the judicial review proceeding, in itself, precludes a granting
of the applicant's request. In addition, there are other reasons, just as
compelling, to refuse the applicant's request.
[17]
Second,
we must consider whether the Citizenship Judge did in fact have a duty to
inform the applicant of his concerns and whether he actually communicated his
concerns to the applicant. The applicant asserts that he was penalized by not
having had an opportunity to file the documents that the Citizenship Judge
wanted.
[18]
While the
respondent relies on case law such as Ali v. Canada (Minister of Citizenship
and Immigration), [1998] 151 F.T.R. 1 and Ushenin v. Canada (Minister of
Citizenship and Immigration, [2003] F.C.J. No. 443 (QL) to support his
assertion that the Citizenship Judge was under no duty to inform the applicant
of his concerns, these cases relate to decisions by a visa officer, not a
citizenship judge. Standing in opposition to this case law is Stine v.
Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 298;
F.C.J. No. 1264 (QL), in which Pelletier J. confirms at paragraph 8 that a
citizenship judge does, in fact, have a duty to disclose his or her concerns to
the applicant:
¶ 8 In
this case, the legislation provides for an interview to be held when there is a
question about the acceptability of the candidate’s application for
citizenship. It is clearly intended to provide the candidate the opportunity to
answer or, at the very least, address the concerns which gave rise to the
request for an interview in the first place. When candidates are deprived of
that opportunity, they are deprived of a right specifically provided for in the
legislation. This is a contrary to law and would, in any event, be a denial of
natural justice.
[19]
Not
convinced of the applicant’s residence, the Citizenship Judge asked him for
additional information. After assessing the documentation provided, the
Citizenship Judge ruled that the applicant did not meet the requirements of the
Citizenship Act. Moreover, the Citizenship Judge also considered
whether a recommendation to exercise the discretion authorized under subsection
5(4) of the Citizenship Act should be made. While it may be said that
the judge made the necessary efforts to provide the applicant with an
opportunity to submit the documents needed to establish that his residence
really was in Canada, this in no way alters the fact that the Citizenship
Judge’s decision did not appear to be based on the fundamental criteria for
determining Canadian residence.
[20]
In order
to establish Canadian residence, the Citizenship Judge must assess the factors
set out in Re Koo, [1993] 1 F.C. 286. As quoted by my colleague de
Montigny J. in Xu v. Canada (Minister of Citizenship and Immigration),
[2005] F.C.J. No. 868 (QL) at paragraph 17, the following are the essential
criteria from Re Koo, supra:
In order to
determine whether the Applicant "regularly, normally or customarily
lives" in Canada, she turned her mind to the six questions suggested by
Madam Justice Reed in Re Koo, [1993] 1 F.C. 286, which read as
follows:
a. was the
individual physically present in Canada for a long period prior to recent
absences which occurred immediately before the application for citizenship?
b.
where are the applicant's immediate family and dependents (and extended
family) resident?
c.
does the pattern of physical presence in Canada indicate a returning home
or merely visiting the country?
d.
what is the extent of the physical absences -- if an applicant is only a
few days short of the 1,095-day total it is easier to find deemed residence
than if those absences are extensive?
e.
is the physical absence caused by a clearly temporary situation such as
employment as a missionary abroad, following a course of study abroad as a
student, accepting temporary employment abroad, accompanying a spouse who has
accepted employment abroad?
f.
what is the quality of the connection with Canada: is it more substantial
than that which exists with any other country?
[21]
The
problem in the instant case is that the Citizenship Judge appears not to have
considered any of the above factors. The Citizenship Judge refers in his
decision to serious doubt concerning the absence dates provided by the
applicant. In support of this doubt, the Citizenship Judge asserts that the
applicant is still a vice-minister in the Democratic Republic of Congo, as
confirmed by an official newspaper from that country dated February 1, 2004.
The Citizenship Judge also alleges that he asked the applicant to provide
photocopies of his passports, both regular and diplomatic, which the applicant
failed to do. Finally, the Citizenship Judge based his decision on the fact
that the applicant failed to provide such documents as tax forms, credit card
receipts or a lease. In Alouache v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 1100 (QL), Gauthier J. stated the
following at paragraphs 19 to 21:
¶ 19
In Chahrour v. Canada (M.C.I.), 2002 FCT 745, [2002] F.C.J. 1011 (QL),
Pinard J. said that, when the physical presence test is applied, bank
statements, rental payments or the presence of other family members in Canada
are not evidence relevant to establishing residence.
¶ 20
It is clear, from
extracts from the reasons in the record, that Judge Springate not only took
such evidence into account, but was influenced by the absence of some of these
indications such as rental receipts, a bank account or credit card, or even by
the absence of participation in Canadian community organizations or other
groups, and finally by the intention of going to work outside Canada..
¶ 21
In the
circumstances, the Court must conclude as Heneghan J. did in Hsu v. Canada
(M.C.I.), 2001 FCT 579, [2001] F.C.J. 862 (QL), that Judge Springate
confused or mixed up the various judicial trends in applying the residence test
to the facts submitted by Ms. Alouache. This is a reviewable error.
[22]
As was noted
in Yang v. Canada (Minister of Citizenship and Immigration) (2002), 216
F.T.R. 117; F.C.J. No. 114 (QL), a citizenship judge who does not take into
account all the relevant evidence concerning the existence of a pied-à-terre in
Canada applies a very strict approach in his interpretation of the residence
requirement. This determination by the Citizenship Judge is not, in my view,
based on evidence or even on logic. As I indicated in paragraph 22 of Yang,
supra:
He placed greater emphasis on the requirement that an
applicant must be physically present in Canada and erred in assessing that the
fourth factor of the test in Re Koo (physical presence) can be
considered the most important of the six.
[23]
Without
conducting an appropriate analysis of the relevant factors in determining
Canadian residence, it is not possible for a citizenship judge to establish on
a balance of probabilities that the applicant has not resided in Canada for the
required number of days. If a citizenship judge suspects that the applicant
was physically present in Canada for too few days, he or she must then examine
whether the applicant has a substantial connection with Canada. In the case at
bar, however, the Citizenship Judge did not demonstrate in his decision that
the applicant was not in Canada for 1095 days. He simply stated that, because
of contradictions he noted in some of the documents, this meant that the
applicant had been out of Canada and therefore did not satisfy the criterion of
1095 days. This is unreasonable, because he has not even assessed the
applicant’s connection with Canada, as set out in Re Koo, supra.
[24]
It should
be noted that it is not the role of this Court to analyse the factors from Re
Koo, supra, concerning the evidence presented to the Citizenship Judge. In
paragraph 19 of Xu v. Canada (Minister of Citizenship and Immigration),
[2005] F.C.J. No. 868 (QL), de Montigny J. properly summarized the role of this
Court:
It is not the role of this Court to reweigh the evidence
presented to the Citizenship Judge to come to a different conclusion.
[25]
It is,
however, essential that the Court determine whether the Citizenship Judge did,
in fact, conduct an analysis in accordance with relevant case law. In this
case, it appears to me that the citizenship court judge did indeed fail to
consider the criteria from Re Koo, supra, and that his decision to
reject the applicant’s citizenship application is not based on reasonable
grounds.
[26]
The
respondent relies on Muliadi v. Canada (Minister of Employment and Immigration),
[1986] 2 F.C. 205, 215 (C.A.) to assert that, in fact, the Citizenship Judge
only has a duty to disclose any extrinsic evidence received in the course of an
application if it is relevant. Thus, it is possible for a citizenship judge
not to have to disclose each and every bit of evidence, especially where an
individual has an opportunity to be heard and to lead evidence. However, where
such evidence may influence a citizenship judge’s decision, he must disclose
it. In the case at bar, since the officer’s notation clearly influenced the
judge’s decision, the judge should have informed the applicant of the notation.
[27]
The lesson
to be drawn from this case is that a citizenship judge who rejects a
citizenship application must base his or her decision on the relevant case law,
that is, Re Koo, supra. In the present case, this was not done.
JUDGMENT
The application for judicial
review is allowed, and the matter is referred back to a different citizenship
judge.
“Paul
U.C. Rouleau”
Certified true translation
Michael Palles
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