Date:
20120614
Docket:
T-852-11
Citation:
2012 FC 756
Ottawa, Ontario,
June 14, 2012
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
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HINA IMRAN
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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
ORDER AND ORDER
“The prophecies of
what the courts will do in fact, and nothing
more pretentious, are
what I mean by the law”
The Path of the Law,
Oliver Wendell Holmes Jr.
10 Harvard Law Review
(1897) 457.
[1]
I
doubt that even Mr. Justice Holmes, after having read the literally hundreds of
decisions of this Court on point, would have, with confidence, predicted the
outcome of Mrs. Imran’s application for citizenship.
[2]
The
citizenship judge dismissed her application on the grounds that she did not
meet the residency requirement. This is the appeal from that decision.
[3]
Under
section 5 of the Citizenship Act, the Minister shall grant citizenship
to a permanent resident who, among other things, has “within the four years
immediately preceding the date of his or her application, accumulated at least
three years of residence in Canada…”
[4]
The
word “residence” is not defined, which has led to a great deal of mischief and
agony over the years. Some citizenship judges have strictly counted the days,
while others have taken a more nuanced approach. Decisions may be appealed to
this Court. Our judges have not seen eye to eye. Unfortunately, there is no
appeal to the Federal Court of Appeal, and Parliament has not seen fit to
rectify this lamentable situation.
[5]
Mrs.
Imran applied for Canadian citizenship 12 August 2008. At that time, she was
only physically present 881 days, rather than 1,095, over the preceding four
years.
[6]
Nevertheless,
her application was far from hopeless. Had the citizenship judge applied the
decision of Associate Chief Justice Thurlow in Re Papadogiorgakis,
[1978] 2 FC 208, [1978] FCJ No 31 (QL), after determining that Mrs. Imran was
not physically present in Canada for three of the four preceding years, i.e.
1,095 days, she would have had to direct her mind to why she was absent. In Papadogiorgakis,
the applicant was far short of the number of days of physical presence in Canada. The prime reason for his absence was that he was attending university in the United States. Associate Chief Justice Thurlow said that residence:
…can include, as well, situations in which the
person concerned has a place in Canada which is used by him during the period
as a place of abode to a sufficient extent to demonstrate the reality of his
residing there during the material period even though he is away from it part
of the time.
[7]
He
added:
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.
[8]
The
learned judge drew inspiration from the meaning of “residence” in tax law.
[9]
On
the other hand, the citizenship judge may have followed the decision of Madam
Justice Reed in Koo (Re), [1992] 59 FTR 27, [1992] FCJ No 1107 (QL), in
which she expanded somewhat upon Associate Chief Justice Thurlow’s decision.
She concluded that the test was whether it could be said that Canada was the place where the applicant regularly, normally or customarily lives, or in other words
whether Canada is the country in which the applicant has centralized his or her
mode of existence. She set out a non-exhaustive list of questions which might be
of aid in reaching a decision:
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 1095 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 temporary employment abroad;
f.
what is the quality of the connection with Canada: is it more substantial than that which exists with any other country.
THE DECISION
[10]
The
citizenship judge, however, applied the decision of Mr. Justice Muldoon in Pourghasemi
(Re) (1993), 19 Imm LR (2d) 259, [1993] FCJ No 232 (QL), and held it was
necessary for an applicant to be physically present in Canada for 1,095 days
during the relevant four-year period. Therefore, her application was denied.
MRS. IMRAN’S
CASE
[11]
Counsel
for the applicant makes a very powerful argument that the standard of review is
correctness; that Pourghasemi was wrongly decided, and that the correct
approach is the more nuanced one expressed by Madam Justice Reed in Koo and
more recently by Mr. Justice Mainville, as he then was, in Canada (Minister
of Citizenship and Immigration) v Takla, 2009 FC 1120, [2009] FCJ No 1371
(QL).
[12]
Under
this approach, after having found, correctly, that Mrs. Imran had not been
physically present for 1,095 days, a further analysis was required, an analysis
which was not carried out. The citizenship judge simply listed the absences and
the reasons therefore without deciding whether she had centralized her life
here, and, if so, whether the standard set out in Koo was satisfied. The
recourse Mrs. Imran seeks is that her appeal be allowed and that the matter be
referred back to another citizenship judge with directions to apply the test
set out in Koo. Certainly it is not up to this Court to usurp that
function of the citizenship judge.
[13]
This
lack of comity among our judges led Mr. Justice Lutfy, as he then was, in Lam
v Canada (Minister of Citizenship and Immigration) [1999] 164 FTR 177, [1999]
FCJ No 410 (QL), to hold that it was open to a citizenship judge to adopt any
one of the three conflicting lines of jurisprudence, and that if the facts of
the case were properly applied to the principles of that approach, we could not
hold that the decision was wrong. Lam was intended to be a stop-gap
measure as Parliament was reconsidering the Citizenship Act and it was
expected that it would clarify the residency requirement. Unfortunately, that
has not come to pass.
[14]
In
Chen v Canada (Minister of Citizenship and Immigration), 2001 FCT 1229, [2001]
FCJ No 1693 (QL), Mr. Justice Nadon, as he then was, was of the view that there
could not be two correct interpretations of the same provisions of the same
statute. However, in that particular case, no matter which test was followed,
and he preferred the test enunciated by Mr. Justice Muldoon, the applicant was
not entitled to citizenship. Little did he then know that the Supreme Court
would later hold that there may be more than one reasonable interpretation of a
statute, and that this Court should show deference to the decision maker whose
decision is under review if the statute is his or her “home” or a related
statute.
THE MINISTER’S
CASE
[15]
The
Minister points out, correctly, that the citizenship judge clearly stated that
she was following Pourghasemi, and did follow it.
[16]
While
it is quite true that in Takla, above, Mr. Justice Mainville was of the
view that the best test was that enunciated by Madam Justice Reed in Koo,
Mr. Justice Rennie, in Martinez-Caro v Canada (Minister of Citizenship and
Immigration), 2011 FC 640, [2011] FCJ No 881 (QL), set forth cogent reasons
why the best approach is that of Mr. Justice Muldoon in Pourghasemi.
[17]
Notwithstanding
these two decisions, this Court has continued to apply Lam. Counsel also
pointed out that there is disagreement among the members of this Court as to
whether a decision of a citizenship judge on the residency issue should be
reviewed on the standard of correctness or on the standard of reasonableness.
ANALYSIS
[18]
If
I were unencumbered by the existing case law, I would have held:
a.
The
residency requirement under the Citizenship Act is a mixed question of
fact and law, subject to the reasonableness standard of review. “Residence” is
not defined and so cannot be isolated from the context in which it is applied.
b.
It
is unreasonable to simply count the days. There must be consideration as to
whether the applicant has centralized his or her life here, and as to why he or
she was physically absent for more than one of the four years immediately
preceding the application.
c.
The
appeal would have been granted and the matter referred back to another citizenship
judge with appropriate directions.
[19]
I
would have reached a decision along the lines of Koo. The first
citizenship appeal I heard was Mann v Canada (Minister of Citizenship and
Immigration), 2003 FC 1479, [2003] FCJ No 1875 (QL). Although the citizenship
judge purported to follow Koo, I held that his findings were patently
unreasonable. Ms. Mann left Canada with her husband and mother-in-law on what
was to be an eight-day trip. However, they stole her Indian passport and her
Canadian visa and left her stranded. It took her years of confrontation with
Canadian consular officials, and a successful judicial review by this Court,
before replacement Canadian documents were issued.
[20]
In
Pourghasemi, Mr. Justice Muldoon said that the purpose of the Citizenship
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.
[21]
I
commented, however, in Mann at paragraph 25:
Furthermore, if the purpose of the
Act is that the applicant rub elbows with Canadians, Ms. Mann did rub elbows,
and rather sharp elbows at that, with Canadian Immigration officers, then had
to deal with a Canadian lawyer, and through him with this Court.
[22]
In
Canada (Minister of Citizenship and Immigration) v Salim, 2010 FC 975,
[2010] FCJ No 1219 (QL), I agreed with Mr. Justice Mainville’s decision in Takla
adding, as did Mr. Justice Zinn in Canada (Minister of Citizenship and
Immigration) v Elzubair, 2010 FC 298, [2010] FCJ No 330 (QL), that if the
applicant had been physically present for at least 1,095 days during the
relevant period, the residency test had been established, without the need for
further inquiry.
[23]
By
characterizing the residency issue as a mixed question of fact and law, subject
to the reasonableness standard of review, I have avoided the necessity of
offering any opinion as to whether deference should be owed to a citizenship
judge on a pure question of law arising out of his or her “home” statute, the Citizenship
Act.
[24]
When
it comes to pure questions of law decided by this Court, no deference
whatsoever is owed by the Federal Court of Appeal; that is how it should be. In
dela Fuente v Canada (Minister of Citizenship and Immigration), 2006 FCA
186, [2007] 1 FCR 387, the Court of Appeal had to deal with the meaning of “at
the time of that application” in section 117(9)(d) of the Immigration and
Refugee Protection Regulations. Some judges of this Court were of the view
that the application timeframe ended when it was filed at the visa office,
while others were of the view that it extended to the time when permanent
residence status was required.
[25]
As
Mr. Justice Marc Nöel stated at paragraphs 38 and 39:
[38] The question which needs to be
clarified is the time that is referenced in the phrase "at the time of
that application". Is it the time when the application is filed at the
visa office as the applications judge held, or is it the time that runs from
the filing of the application to the time when permanent resident status is acquired
as was held in Dave?
[39] Recognizing that the phrase can
reasonably be read either way, I have concluded that the interpretation
proposed in Dave is to be preferred for the following reasons.
[26]
However,
the same lack of deference does not apply in review by this Court of a decision
of a tribunal based on its “home” or related statute. In Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654, Mr. Justice Rothstein, with whom Chief Justice
McLachlin and Justices LeBel, Fish, Abella and Charron concurred, said at
paragraph 34:
[…] it is
sufficient in these reasons to say that, unless the situation is exceptional,
and we have not seen such a situation since Dunsmuir, the interpretation
by the tribunal of “its own statute or statutes closely connected to its
function, with which it will have particular familiarity” should be presumed to
be a question of statutory interpretation subject to deference on judicial
review.
The reference to Dunsmuir is
a reference to Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
[27]
However,
the concurring reasons of Justices Binnie and Deschamps, on the one hand, and
Justice Cromwell, on the other, were somewhat different.
[28]
This
issue was considered in great depth by Mr. Justice Martineau in King v Canada (Attorney General of Canada), 2012 FC 488, [2012] FCJ No 537 (QL). He quoted from the
late professor Chaïm Perelman (1912-1984) at paragraph 92:
The
diversity of laws is proof of our ignorance of true justice. That which
conforms to reason cannot be just here and unjust there, just today and unjust
tomorrow, just for one and unjust for another. That which is just in reason
should, like that which is true, be so universally. Disagreement is a sign of
imperfection, of a lack of rationality.
If
two interpretations of the same text are reasonably possible, it is because the
law is ambiguous, therefore imperfect. If the law is clear, then at least one
of the two interpreters disputes in bad faith. In any case, disagreement is a
scandal, due either to the imperfection of the legislator or to the deceptive
subtlety of the lawyers. The innate sense of justice, which each equitable
judge certainly possesses, should permit the rapid reestablishment of correct
order.
[29]
My
prophecy of what the Supreme Court will do, in fact, is that it will revisit
the standard of review to be applied to tribunals interpreting their “home”
statutes, just as it revisited the standards of judicial review in Dunsmuir.
THE DECISION
[30]
To
bring this matter to an end, notwithstanding his decision in Martinez-Caro,
Mr. Justice Rennie had earlier held in Murphy v Canada (Minister of
Citizenship and Immigration), 2011 FC 482, [2011] FCJ No 596 (QL), at
paragraph 8:
Simply put, it is not an error for a Citizenship
judge to assess residency by applying only the physical presence test.
The jurisprudence as it currently stands provides Citizenship judges with
the discretion to choose any of the three tests. Clearly, some Federal
Court judges prefer one test to another, but Citizenship judges retain the
ability to choose and apply any of the three tests.
He remained of that view in Martinez-Caro
as he said that “Chief Justice Lutfy’s caution about the deleterious impact of
conflicting interpretations on the administration of justice remains valid and
accurate to this day” (para. 21) and went on to say at paragraph 26:
I conclude therefore, that the Citizenship
Judge adopted and correctly applied a legally accepted test to the facts as
found. Consistent with Lam this is sufficient to dispose of this
appeal. It is however, also my view that the test of physical presence is
the correct interpretation of the residency provision, and that decisions by Citizenship Court judges on this issue should be reviewed on the standard of correctness.
[31]
In
Canada (Minister of Citizenship and Immigration) v Saad, 2011
FC 1508, [2011] FCJ No 1801 (QL), Madam Justice Bédard stated at paragraph 14:
[…]
Even
though I consider it unfortunate that the fate of some applications for citizenship
may depend, in part, upon the identity of the citizenship judge who processes
the application and the interpretation of the concept of residence that that
judge endorses, I believe that the three interpretations that have been
traditionally accepted as reasonable are still reasonable and will continue to
be so in the absence of legislative action…
[32]
Although
judicial comity, which encourages predictability, has certainly taken a beating
in citizenship matters, I think it preferable to continue to follow Lam,
as did Justices Rennie and Bédard, and many others, including myself,
notwithstanding different opinions as to how the residency requirement should
be interpreted. It is bad enough that there is a high level of uncertainty at
the citizenship judge level, without adding further uncertainty at the Federal
Court level. If I, as a follower of Koo, were to grant this appeal and
send it back with directions, the next judge, a follower of Pourghasemi, might
set aside a decision based on Koo and send it back with different
directions. As this Court has said time and time again, the answer lies with
Parliament.
[33]
As
I stated during the hearing, no matter the outcome of the case, it would not be
appropriate to award costs.
ORDER
FOR
REASONS GIVEN;
THIS
COURT ORDERS that:
1.
The
appeal is dismissed.
2.
The
whole without costs.
“Sean Harrington”
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