Date: 20100929
Docket: T-655-10
Citation: 2010 FC
975
Ottawa, Ontario, September 29, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Applicant
and
MUHAMMAD
SALIM
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
In March
of this year, Citizenship Judge Duguay approved Mr. Salim’s application for
Canadian citizenship. The Minister has appealed on the grounds that the
Citizenship Act requires the judge to provide him with reasons for the decision.
The Minister submits that the reasons given are inadequate in that it is not at
all clear which line of jurisprudence the Citizenship Judge followed and, in
any event, the decision is unreasonable. The issue is whether Mr. Salim satisfied
the residency requirements of the Act. According to one school of
thought, residence means physical presence. Two others state that in certain
circumstances a person satisfies the requirement if here in spirit, but not in
body.
[2]
I agree
with the Minister that the reasons did not satisfy the requirements of Section
14(2) of the Act. Failure to give reasons, when such is required by law,
is a breach of procedural fairness. No deference is owed and so the decision
must be set aside (R .v. Shepphard, 2002 SCC 26, [2002] 1 S.C.R. 869).
Not only are the parties entitled to know why a decision was made, but so does
the Court sitting in appeal or in judicial review. I am left to speculate as to
what the judge had in mind.
[2]
Section
5(1)(c) of the Act requires an applicant to be a permanent
resident who has “within the four years immediately preceding the date of his
or her application, accumulated at least three years of residence in Canada”.
The material in the record is such that the Citizenship Judge’s conclusion that
Mr. Salim satisfied the residency test could possibly be well-founded.
Consequently, I have decided to grant the Minister’s appeal but to refer the
matter back to Citizenship Judge Duguay for redetermination.
I. The facts
[3]
Mr. Salim
became a permanent resident of Canada 28 December 2001. He applied
for citizenship 8 September 2005. He calculated that the number of days
intervening were 1350, although the officer preparing the citizenship
application review calculated 1349. In his application form, Mr. Salim declared
that he had been outside of Canada for 251 days during that
timeframe. The citizenship officer determined 248. Thus, Mr. Salim calculated
that he had been physically present in Canada 1099 days, while the officer calculated
1101. The difference is not explained, but appears to relate to whether the
dates of departure or dates of return are counted. Residence for at
least three years within the meaning of the Act adds up to 1095 days. All
these figures suggest Mr. Salim satisfied the Act by being
physically present here for at least 1095 days.
[4]
However, a
citizenship agent had reported that according to passport stamps there were six
trips outside Canada during that time which Mr.
Salim did not declare. It is clear from the passport entries that these were
not day trips from Montréal to Plattsburgh,
New York. Mr. Salim admits that he was
in Canada less than 1095 days, but adds
that he did not deliberately misrepresent his situation.
II. The judgment
[5]
The
judgment is in the form of a “Notice to the Minister of the decision of the
Citizenship Judge”. This is a Citizenship and Immigration Canada printed form.
Some particulars are typewritten, and some handwritten by the judge. In the
Reasons column, all he wrote by hand was:
After a careful examination of all
evidence provided following an audition where the applicant’s credibility is of
quality, on the preponderance/balance of probabilities, it seems that the
applicant has established and maintained his residence in Canada. I approve his application
for Canadian citizenship.
[6]
However,
typewritten in the column on the upper right hand side of the page, we see
total number of days 1349, total absences 248, physical presence 1101. This is
clearly wrong. If prepared in advance of the hearing, it should have been
corrected.
[7]
In the
judge’s notes, which form part of the record, he shows both the 248 days away
from Canada, and the 251 as mentioned
above. He also refers to the memorandum he received and the fact that there had
been six non-declared trips. However, we have no idea how long Mr. Salim was
away from Canada during those six trips.
[8]
Unfortunately,
we are also left to speculate as to whether the judge’s finding that Mr. Salim
was credible related to the number of days he was physically present in Canada or, as is more likely, that
he was not in bad faith in not declaring six trips out of the country.
III. The law
[9]
There has
been a sea change in the recent jurisprudence of this Court following the
decision of Mr. Justice Mainville, as he then was, in Canada (Minister of
Citizenship and Immigration) v. Takla, 2009 FC 1120, [2009] F.C.J. No. 1371
and the decision of Mr. Justice Zinn in Canada (Minister of Citizenship and
Immigration) v. Elzubair, 2010 FC 298, [2010] F.C.J. No. 2330. Elzubair
with which I fully agree stands for the proposition that if the applicant has
been physically present for at least 1095 days during the relevant period, the
residency test has been satisfied. If not, the Citizenship Judge must go on to
consider whether Canada is a place where the applicant “regularly, normally or
customarily lives” in accordance with the non-exhaustive factors set out by
Madam Justice Reed in Koo (Re), [1993] 1 F.C. 286.
[10]
For over
30 years, we have been plagued with three residency tests or, as some would
have it, two tests, the second having two branches. Prior to amendments to the Act
in the 1970s, this Court equated residency with physical presence. Following
amendments to the Act, Associate Chief Justice Thurlow in Re Papadogiorgakis,
[1978] 2 F.C. 208, [1978] F.C.J. No. 31, drew inspiration from income tax
law. The issue according to him, was whether an applicant’s presence in Canada could be called a “stay” or a
“visit”. He said:
16 A person with an established home
of his own in which he lives does not cease to be resident there when he leaves
it for a temporary purpose whether on business or vacation or even to pursue a
course of study. The fact of his family remaining there while he is away may
lend support for the conclusion that he has not ceased to reside there. The
conclusion may be reached, as well, even though the absence may be more or less
lengthy. It is also enhanced if he returns there frequently when the
opportunity to do so arises.
[11]
Thus, Mr.
Papadogiorgakis who established himself here, and then went away to study, only
had 79 days towards the required 1095. Nevertheless, it was held he met the
residing requirement.
[12]
Madam
Justice Reed was far more nuanced in Koo (Re) above. She said :
The conclusion I draw from the jurisprudence
is that the test is whether it can be said that Canada is the place where the applicant
"regularly, normally or customarily lives". Another formulation of
the same test is whether Canada is the country in which he or
she has centralized his or her mode of existence. Questions that can be asked
which assist in such a determination are:
(1) was the individual
physically present in Canada for a long period prior to
recent absences which occurred immediately before the application for
citizenship?
(2) where are the
applicant's immediate family and dependents (and extended family) resident?
(3) does the pattern of
physical presence in Canada indicate a returning home or
merely visiting the country?
(4) 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?
(5) 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?
(6) what is the quality of
the connection with Canada: is it more substantial than
that which exists with any other country?
[13]
Mr.
Justice Muldoon took a contrary approach in Pourghasemi (Re) (1993), 62
F.T.R. 122, 19 Imm. L.R. (2d) 259. He said that the purpose of the Act
was to ensure that everyone:
...at least has been compulsorily
presented with everyday opportunity to become "Canadianized". This
happens by "rubbing elbows" with Canadians in shopping malls, corner
stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators,
churches, synagogues, mosques and temples - in a word wherever one can meet and
converse with Canadians - during the prescribed three years.
[14]
In Harry
(Re), 144 F.T.R. 141, [1998] F.C.J. No. 189, he reiterated the physical
presence test and strongly disagreed with Re Papadogiorgakis, above. He
said:
8 The word "residence" or
"resident" appears to have given some flights of fancy to some judges
over the years, but it too is a most straightforward word. It does not signify
absence, but rather, presence. The English-language words mean the same as the
French-language words. There is no difference of concept.
[15]
Mr.
Justice Lutfy, as he then was, noted this divergence in the jurisprudence in Lam
v. Canada (Minister of Citizenship and
Immigration),
164 F.T.R. 177, 1999 F.C.J. No. 418. He lamented the fact that the Act
did not provide for an appeal from the Federal Court, Trial Division to the
Federal Court of Appeal, and that the divergence of views had brought
uncertainty to the administration of justice. He expressed the view that the
difficulty might soon be resolved by Bill C-63 which had received its second
reading in March 1999. He held:
16 The issue which must be determined
during this period of uncertainty is whether the Trial Division's scope of
review has changed where the appeal is dealt with as an application and not as
a trial de novo.
[16]
He
concluded that if a Citizenship Judge, in this interim period, adopted any one
of the three conflicting lines of jurisprudence, and if the facts of the case
were properly applied to the principles of that approach, the Citizenship Judge’s
decision should not be set aside.
[17]
In Chen
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1229, 213 F.T.R. 137,
Mr. Justice Nadon, as he then was, said there could not be two correct
interpretations of a statute. Although he preferred Mr. Justice Muldoon’s
approach rather than Papadogiorgakis as modified by Koo, it was
not necessary for him to reach a conclusion on the facts before him.
[18]
Unfortunately,
Parliament did not address the problem by either setting out residency
requirements in the Act or by providing for an appeal to the Federal
Court of Appeal.
[19]
This led
Mr. Justice Mainville, as he then was, to conclude in Takla above that
this interim period must come to an end. He opted for Koo (Re).
[20]
I adopt
the analysis thereof by Mr. Justice Zinn in Elzubair, above, at paragraphs
12, 13 and 14 and am of the view:
a) the standard
of review with respect to jurisdiction, procedural fairness and natural justice
is correctness;
a. determination of compliance
with the residency requirement is subject to the reasonableness standard of
review;
b. if the applicant was
physically present in Canada for at least 1095 days, then
residence is proven;
c. if not physically present the
required number of days, then the Citizenship Judge must make a threshold assessment
as to whether residence was established at all and, if so, then to assess in
accordance with Koo (Re), above.
[21]
Certainly
there are circumstances where a physical presence test, no more no less, is
inappropriate. I refer to my own decision in Mann v. Canada (Minister of Citizenship and
Immigration),
2003 FC 1479, 33 Imm. L.R. (3d) 282.
IV. Conclusion
[22]
It may be
that the Citizenship Judge was attempting to follow Koo (Re), rather
than the other two schools of thought from this Court which have now run their
course. However, his reasons are far from clear. Certainly the Minister who in
any event contests the significance of some of the documents presented, is
entitled to know the basis of the decision.
JUDGMENT
1.
The
Minister’s appeal is granted.
2.
The matter
is referred back to Citizenship Judge Duguay for redetermination, taking into
account these reasons, or if he is unwilling or unable to act, to another judge.
3.
There
shall be no order as to costs.
“Sean
Harrington”
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