Date: 20051014
Docket: T-87-05
Citation: 2005 FC 1392
Ottawa, Ontario, October 14, 2005
PRESENT:
THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
IBRAHIM KHALIL EL-SALEM SAQER
and KHATIB AREEJ
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BEAUDRY J.
[1]
This is an
appeal under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c.
C-29, (the Act) of decisions made by Citizenship Judge Gilbert Decoste
(the Citizenship Judge), dated September 30, 2004, rejecting the
applicants’ citizenship applications on the grounds that they failed to meet
the requirements described in paragraph 5(1)(c) of the Act. The
applicants, having received on March 17, 2005, authorization to
proceed in a single file by order of Prothonotary Richard Morneau, are seeking
an order allowing this appeal, quashing the impugned decisions and referring
them to a different citizenship judge.
ISSUE
[2]
Did the Citizenship
Judge commit an error in law warranting the Court’s intervention and breach the
principles of procedural fairness when he rejected the applicants’ applications
for Canadian citizenship?
[3]
For the
reasons that follow, the appeal will be dismissed.
FACTS
[4]
The
applicants are Jordanian citizens. They obtained permanent resident status on
August 25, 1998.
[5]
The
applicants each filed an application for Canadian citizenship on
April 24, 2004. In his application, Mr. Saqer declared having
accumulated 1,064 days of residence in Canada in the period prescribed by
paragraph 5(1)(c) of the Act, and Ms. Areej claimed she had
accumulated 1,131 days of residence in Canada in the same period.
[6]
On
July 19, 2004, after passing their citizenship tests, the applicants
met with the Citizenship Judge separately, who asked them to provide additional
documentary evidence to support their declarations that they had been in Canada
in the period prescribed by the Act.
[7]
The
applicants allege that the Citizenship Judge never told them that they had to
send him this documentation within a specific period of time.
[8]
According
to his written notes dated September 30, 2004, the Citizenship Judge gave the
applicants 20 days to send him the documentation.
[9]
On
September 30, 2004, 73 days after meeting with the applicants, the Citizenship
Judge still had not received the requested documentation. Based on the
information he had in the applicants’ files, he concluded that they had not
demonstrated they were in Canada during the period prescribed by
paragraph 5(1)(c) of the Act.
IMPUGNED DECISIONS
[11]
The Citizenship
Judge’s decisions are essentially based on the fact that the applicants did not
convince him they had accumulated at least three years of residence in Canada
in the four years preceding their applications.
[12]
In his
letters of November 30, 2004, the Citizenship Judge further indicated
that there were no circumstances allowing him to recommend to the Governor in
Council that the discretionary power under subsection 5(4) of the Act be
exercised and to direct the Minister to grant citizenship to any person named
in the direction in order to alleviate cases of special and unusual hardship or
to reward services of an exceptional value to Canada.
ANALYSIS
[13]
The
relevant provisions of the Act are as follows:
|
5.
(1) The Minister shall grant citizenship to any person who
.
. .
(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;
.
. .
(4)
In order to alleviate cases of special and unusual hardship or to reward
services of an exceptional value to Canada, and notwithstanding any other
provision of this Act, the Governor in Council may, in his discretion, direct
the Minister to grant citizenship to any person and, where such a direction
is made, the Minister shall forthwith grant citizenship to the person named
in the direction.
|
|
5.
(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
[…]
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;
[…]
(4)
Afin de remédier à une situation particulière et inhabituelle de détresse ou
de récompenser des services exceptionnels rendus au Canada, le gouverneur en
conseil a le pouvoir discrétionnaire, malgré les autres dispositions de la
présente loi, d'ordonner au ministre d'attribuer la citoyenneté à toute
personne qu'il désigne; le ministre procède alors sans délai à l'attribution.
|
|
14.
(1) An application for
(a)
a grant of citizenship under subsection 5(1),
.
. .
shall
be considered by a citizenship judge who shall, within sixty days of the day
the application was referred to the judge, determine whether or not the
person who made the application meets the requirements of this Act and the
regulations with respect to the application.
.
. .
(3)
Where a citizenship judge does not approve an application under subsection
(2), the judge shall forthwith notify the applicant of his decision, of the
reasons therefor and of the right to appeal.
.
. .
(4) A notice referred to in subsection
(3) is sufficient if it is sent by registered mail to the applicant at his
latest known address.
(5)
The Minister or the applicant may appeal to the Court from the decision of
the citizenship judge under subsection (2) by filing a notice of appeal in
the Registry of the Court within sixty days after the day on which
(a)
the citizenship judge approved the application under subsection (2); or
(b)
notice was mailed or otherwise given under subsection (3) with respect to the
application.
|
|
14.
(1) Dans les soixante jours de sa saisine, le juge de la citoyenneté statue
sur la conformité -- avec les dispositions applicables en l'espèce de la
présente loi et de ses règlements -- des demandes déposées en vue de :
a)
l'attribution de la citoyenneté, au titre du paragraphe 5(1);
[…]
(3)
En cas de rejet de la demande, le juge de la citoyenneté en informe sans
délai le demandeur en lui faisant connaître les motifs de sa décision et
l'existence d'un droit d'appel.
[…]
(4)
L'obligation d'informer prévue au paragraphe (3) peut être remplie par avis
expédié par courrier recommandé au demandeur à sa dernière adresse connue.
(5)
Le ministre et le demandeur peuvent interjeter appel de la décision du juge
de la citoyenneté en déposant un avis d'appel au greffe de la Cour dans les
soixante jours suivant la date, selon le cas :
a) de l'approbation de la demande;
b) de la communication, par courrier ou tout autre
moyen, de la décision de rejet.
|
[14]
The
standard of review concerning an appeal of a citizenship judge’s decision under
subsection 14(5) of the Act was discussed by Rouleau J. in Badjeck v.
Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1804
(F.C.T.D.) (QL), at paragraphs 38 to 40:
It should be noted at the
outset that the applicable standard of review in citizenship appeals has been
determined by the courts to be correctness: Lam v. Canada (Minister of
Citizenship and Immigration) (1999), 164 F.T.R. 177, at para. 33; Canada
(Minister of Citizenship and Immigration) v. Hung, [1998] F.C.J. No. 1927,
at para. 12 (QL) (F.C.). Although findings of fact by citizenship judges must
be treated with deference, the citizenship judge's decision in the case at bar
may be quashed if it completely disregards important evidence without
explanation: Hung, supra.
A person who applies for
citizenship under s. 5(1)(c) of the Act must have resided in Canada for
at least three years in the four years preceding the date of his or her
application. This Court has several times noted that judicial decisions with
radically divergent interpretations have seriously complicated application of
the Act. The assessment of the case law on the residence requirement by the
citizenship judge in the case at bar is hardly an example of precision and
eloquence, and the way in which she referred to the points made by various
judicial schools of opinion could well lead to confusion. In Lam, supra,
at para. 33, Lutfy J. noted that a citizenship judge's decision should not
be set aside simply because one party to the dispute does not agree with the
test applied to determine residence. This is what Lutfy J. wrote in this
regard:
However, where
citizenship judges, in clear reasons which demonstrate an understanding of the
case law, properly decide that the facts satisfy their view of the statutory
test in paragraph 5(1)(c), the reviewing judges ought not to substitute
arbitrarily their different opinion of the residency requirement. It is to this
extent that some deference is owed to the special knowledge and experience of
the citizenship judge during this period of transition.
[15]
In Yang
v. Canada (Minister of Citizenship and Immigration), [2002]
F.C.J. No. 114 (F.C.T.D.) (QL), Rouleau J. stated as follows at
paragraph 16:
Since Mr. Justice Lutfy's
decision in Lam, supra, the jurisprudence of this Court
establishes that there is a certain amount of deference owed to the specialized
knowledge and experience of citizenship judges. Thus, a citizenship judge is
entitled to adopt one particular approach to the determination of the residence
requirement over another. So long as the approach chosen by the citizenship
judge is correctly applied, the intervention of this Court is not warranted.
[16]
However,
in this case, the central issue is not really how accurately the Citizenship
Judge interpreted the residence concept. The issue is, rather, determining
whether the Citizenship Judge’s failure to explicitly mention a specific time
frame to provide additional information breached procedural fairness and
warrants the intervention of this Court.
[17]
The
applicants claim that the answer to this question is yes, citing, inter alia,
L’Heureux‑Dubé J. in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, paragraph
22:
[T]he purpose of the
participatory rights contained within the duty of procedural fairness is to
ensure that administrative decisions are made using a fair and open procedure,
appropriate to the decision being made and its statutory, institutional, and
social context, with an opportunity for those affected by the decision to put
forward their views and evidence fully and have them considered by the
decision-maker.
[18]
The
applicants were nevertheless given an opportunity to provide additional
evidence to dispel the Citizenship Judge’s doubts with respect to the
requirements of paragraph 5(1)(c) of the Act. Their applications
were rejected on September 30, 2004, 73 days after the first meeting
and 13 days after the time frame provided in paragraph 14(1)(a) of
the Act for the judge to render his decision.
[19]
Since the
applicants are assumed to be familiar with the Act, the issue of determining
whether the 20-day time frame was explicitly mentioned by the Citizenship Judge
is of little relevance. In fact, the judge was supposed to render his decision
within 60 days, a time frame that is a procedural right (Chung (Re),
[1998] F.C.J. No. 754 (F.C.T.D.) (QL) at paragraph 9, and Ho (Re),
[1997] F.C.J. No. 1154 (F.C.T.D.) (QL) at paragraph 14).
[20]
However,
the applicants had the burden of proving they met the requirements of
paragraph 5(1)(c). In Maharatnam v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 405 (F.C.T.D.) (QL),
Gibson J. stated the following at paragraph 5:
I am satisfied that the
onus is on an applicant for Canadian citizenship to satisfy a Citizenship Judge
that he or she fulfills the requirements of the Act or warrants an
exercise of discretion by the Citizenship Judge, pursuant to subsection 15(1).
[21]
Fulfilment
of these requirements must be proven using the balance of probabilities
standard, as indicated by Pinard J. in Malevsky v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 1554 (F.C.T.D.) (QL), at
paragraph 7:
The burden of proof on
the applicant for establishing the residence requirements under paragraph 5(1)(c)
of the Act is the mere civil evidence burden, proof by a balance of
probabilities.
[22]
After
reviewing the documents in the file and the impugned decisions, I am satisfied
that the Citizenship Judge did not commit an error in law warranting the
Court’s intervention. The Citizenship Judge’s written notes, albeit brief,
mention that he considered the applicants’ applications, their passports and
their residence declarations, and that they did not establish the applicants
had complied with the requirements of the Act. In my view, the Citizenship
Judge provided sufficient reasons for his decisions, meeting the standards
established by applicable case law relating to natural justice.
ORDER
THE COURT ORDERS that the appeals filed by the
applicants be dismissed.
“Michel
Beaudry”
Certified true translation
Jason Oettel
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