Date:
20120608
Docket:
T-790-11
Citation:
2012 FC 721
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, June 8, 2012
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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ROBERT ROUSSE
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an appeal by Robert Rousse (Mr. Rousse) under subsection 14(5) of
the Citizenship Act, RSC 1985, c C-29 (the Act) from the decision of
citizenship judge Renée Giroux rejecting his application for citizenship.
[2]
For
the reasons that follow, this appeal is allowed.
II. Facts
[3]
Mr. Rousse
is a citizen of France. He arrived in Canada on March 26, 2000. He worked
as an osteopath in Toronto before settling in Quebec.
[4]
On
August 24, 2004, Mr. Rousse was granted permanent resident status in Canada.
[5]
On
November 12, 2007, he filed his application for citizenship, in which he
stated he had been absent from Canada for 475 days during the designated
period, rather than the 365 days allowed.
[6]
Mr. Rousse’s
application was heard on December 14, 2010. At the interview, the
citizenship judge granted an extension of time to allow Mr. Rousse to
submit further evidence.
[7]
On
March 15, 2011, after analyzing the additional evidence, the citizenship judge rejected
Mr. Rousse’s citizenship application.
III. Legislation
[8]
Section 5(1)
of the Act provides:
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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;
d) has an adequate knowledge of one of the official
languages of Canada;
(e) has an adequate knowledge of Canada and
of the responsibilities and privileges of citizenship; and
(f) is not under a removal order and is not
the subject of a declaration by the Governor in Council made pursuant to
section 20.
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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;
d) a une connaissance suffisante de l’une des langues
officielles du Canada;
e) a une connaissance suffisante du Canada et des
responsabilités et avantages conférés par la citoyenneté;
f) n’est pas sous le coup d’une mesure de renvoi et
n’est pas visée par une déclaration du gouverneur en conseil faite en
application de l’article 20.
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IV. Question
in Issue and Standard of Review
A.
Question
in Issue
·
Did
the citizenship judge err in rejecting Mr. Rousse’s application under
paragraph 5(1)(c) of the Act?
B.
Standard
of Review
[9]
Review
of the decision of a citizenship judge as to whether an applicant meets the
requirements set out in the Act is a question of mixed fact and law, when the
judge must, among other things, apply the facts to the criteria in the Koo
test (see Chowdhury v Canada (Minister of Citizenship and Immigration),
2009 FC 709, at paras. 24 to 28; see also Canada (Minister of
Citizenship and Immigration) v Zhou, 2008 FC 939 at para. 7). However,
where the issue before the Court, as in this case, relates to the selection of
the test or confusion between the criteria that apply to the test chosen, the
standard in that case is correctness (see El Ocla v Canada (Minister of
Citizenship and Immigration), 2011 FC 533 at paras. 10 to 12).
V. Position of
the Parties
A.
Position
of Mr. Rousse
[10]
Mr. Rousse
submits that the citizenship judge erred in law in that she confused the
criteria that apply to whether there was a centralized residence in Canada (Koo
(Re) (T.D.), [1993] 1 FC 286 [Koo]) with the strict physical
presence criterion (Pourghasemi (Re), [1993] FCJ No. 232 [Pourghasemi]).
[11]
Mr. Rousse
submits that there are several grounds that support his argument that the
judge’s conclusion was unreasonable.
[12]
First,
he states that the citizenship judge failed to have regard to his affidavit
describing his establishment in Canada, which therefore allowed the Koo
criteria to be applied.
[13]
He
also submits that the judge considered facts that took place outside the
designated period.
[14]
Last,
he submits that the judge failed to make a determination as to whether he had
actually established residence, and accordingly to apply the Koo test.
[15]
In
short, Mr. Rousse contends that the judge did not make a determination
regarding a fundamental element of his application, and this vitiates her
decision.
B.
Position
of the Respondent
[16]
The
respondent submits that “[i]t
has remained open to citizenship judges to choose either of the two
jurisprudential schools represented by Pourghasemi
and Papadogiorgakis/Koo in making that determination so long
as they reasonably applied their preferred interpretation of the statute to the
facts of the application before them” (Hao v Canada (Minister of
Citizenship and Immigration), 2011 FC 46 at para. 24).
[17]
The
respondent submits that the citizenship judge applied the physical presence
criterion. Mr. Rousse contends that the citizenship judge confused the Koo
and Pourghasemi criteria. In the respondent’s submission, however, the
judge clearly stated that her decision was based on the quantitative criteria
in Pourghasemi.
[18]
The
respondent further submits that the judge was required to take the Koo criteria
into account, among other things, in order to determine whether Mr. Rousse
was resident in Canada. In addition, the respondent referred to Wang v
Canada (Minister of Citizenship and Immigration), 2008 FC 390 at
para. 10, which held: “The jurisprudence suggests that this involves a
two-stage inquiry: a threshold determination as to whether or not residence in
Canada has been established and then, if that threshold is met, a further
determination of whether or not the particular applicant’s residence satisfies
the required total number of days.”
[19]
Mr. Rousse’s
occupation, his home addresses and his income tax returns are all evidence that
can establish his residence. It was therefore open to the citizenship judge to
comment on that evidence in the record. The fact that the citizenship judge
commented on evidence does not create confusion as to the approach she adopted
and does not constitute an error. The respondent referred the Court to Tulupnikov
v Canada (Minister of Citizenship and Immigration), 2006 FC 1439 in
support.
[20]
In
the respondent’s submission, since Mr. Rousse did not meet the requirements
of paragraph 5(1)(c) of the Act, the citizenship judge’s conclusion is
reasonable and there are therefore no grounds for this Court to intervene (Deshwal
v Canada (Minister of Citizenship and Immigration), 2011 FC 1248 at
para. 20; Abbas v Canada (Minister of Citizenship and
Immigration), 2011 FC 145 at paras. 8-9).
VI. Analysis
·
Did
the citizenship judge err in rejecting Mr. Rousse’s application under paragraph 5(1)(c)
of the Act?
[21]
The
citizenship judge erred in rejecting Rousse’s application under
paragraph 5(1)(c) of the Act.
[22]
“Thus, the Court must
show deference, but a qualified deference, when hearing an appeal from a
decision by a citizenship judge under subsection 14(5) of the Citizenship
Act
concerning
the determination of compliance with the residence requirement” (see
Canada (Minister of Citizenship and Immigration) v Takla, 2009 FC 1120 at
para. 39).
[23]
In
Ahmed v Canada (Minister of Citizenship and Immigration), 2002 FCJ No. 1415
(QL) at para. 4, the Court stated that 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
where that issue has relevance and when it does not. In my view, the ‘issue’
regarding the divergence of opinion in Federal Court jurisprudence is not
relevant to the issue of whether an appellant has established a residence in
Canada.”
[24]
In
the notes in the record explaining the reasons for the decision, the
citizenship judge had regard to all of the evidence in the record, including
Mr. Rousse’s previous addresses, a letter from his former employer and his
income tax returns.
[25]
She
did in fact conduct an analysis in light of the criteria in Koo.
[26]
The
Citizenship judge’s manual provides, in section 5.9 B – Exceptional
circumstances:
In accordance with established case law, an
applicant may be absent from Canada and still maintain residence for
citizenship purposes in certain exceptional circumstances.
. . .
In assessing whether the absences of an applicant
fall within the allowable exceptions, use the following six questions as the
determinative test. These questions are those set out by Madame
Justice Reed in the Koo decision. For each question,
an example is given of a circumstance that may allow the applicant to meet the
residence requirement.
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 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 temporary
employment abroad?
. . .
6. What is the
quality of the connection with Canada: is it more substantial than that which
exists with any other country?
. .
.
[27]
The
citizenship judge noted that Mr. Rousse lived at his business premises for
some time, before the owner asked him to stop living there (see the letter from
Ameen Patel dated July 28, 2003). She also noted that some addresses had
been omitted from the residency questionnaire signed by Mr. Rousse on
March 9, 2009.
[28]
The
citizenship judge noted that Mr. Rousse’s numerous absences were
attributable to his business activities, in that he offered internships and
provided training courses outside Canada.
[29]
The
judge also noted that Mr. Rousse filed bank statements, insurance invoices
and memberships in clubs and associations, and that Mr. Rousse made no
mention of any community involvement in Canada.
[30]
In
short, the judge conducted a thorough analysis, applying the Koo
criteria. However, and therein lies the rub, she rejected the application on
the basis of Pourghasemi, that is, based on the physical presence
criterion alone.
[31]
This
confusion about the approach and the applicable criteria cannot be accepted,
since it constitutes an error of law. The decisions of this Court rightly
acknowledge, given the law as it now stands, that it is up to the citizenship
judge to select the applicable test. However, once a judge makes that
selection, they must apply the test selected consistently. The applicant must
be able to understand the decision and the reasons and basis for that decision.
[32]
In
this case, the judge failed to make a determination, after completing her
analysis applying the Koo criteria, as to whether Mr. Rousse had or
had not established residence. She concluded:
[TRANSLATION]
Following the hearing on December 14, 2010, and
after doing a careful review of the documentation submitted, I again find that Robert
ROUSSE does not meet the requirement in section 5(1)(c) of the Citizenship
Act in that he was not in Canada for long enough during the period
considered.
I refer to the criteria stated by Muldoon J. in
Pourghasemi, (RE): [1993] F.C.J. No. 232, which are clear, on this point. (See
notes of Judge Renée Giroux in the record.)
[33]
In
conclusion, the Court allows the appeal because the judge erred by conducting
an analysis under the Koo criteria and reaching a conclusion on the
basis of the physical presence criterion in Pourghasemi.
JUDGMENT
FOR
THESE REASONS, THE COURT ALLOWS the appeal and REFERS THE MATTER
BACK TO A DIFFERENT CITIZENSHIP JUDGE, with no order as to costs.
“André
F.J. Scott”
Certified
true translation
Daniela
Guglietta, Reviser
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