Date: 20101102
Docket: T-627-10
Citation: 2010 FC 1073
[UNREVISED CERTIFIED
TRANSLATION]
Ottawa, Ontario, November 2, 2010
PRESENT:
The Honourable Mr. Justice Boivin
BETWEEN:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
WADAD
ABOU-ZAHRA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant is appealing the decision accepting the citizenship application of Wadad Abou‑Zahra
(Citizenship Record 3456333), issued on February 24, 2010, by Citizenship
Judge Gilles Duguay.
[2]
On
April 22, 2010, the Minister filed a notice of application against this
decision under section 21 of the Federal Courts Act, R.S.C. 1985, c.
F-7, subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act) and
paragraph 300(c) of the Federal Courts Rules, SOR/98-106.
[3]
Ms. Abou‑Zahra
did not appear on this application either in person or through counsel, despite
being personally served on April 23, 2010. Consequently, the facts are
taken from the Minister’s memorandum of fact and law.
Facts
[4]
Ms. Wadad Abou‑Zahra
is a citizen of Lebanon. She became a permanent resident on
December 14, 1990, and applied for citizenship on December 14, 2007.
[5]
Since
1990, she has been living with her husband and adolescent son in the basement
of her niece’s home in the province of Quebec. However,
she owns a home in Lebanon. Her son was born in Lebanon in 1995. Ms. Abou‑Zahra’s
husband did not apply for citizenship because of numerous trips: he is self‑employed
in the import/export field.
[6]
On
July 15, 2009, a request to provide complete copies of all passports
issued and to fill out the citizenship questionnaire was sent to Ms. Abou‑Zahra.
Since she failed to respond to this request within 20 days, her file was
referred to a citizenship judge.
[7]
On
February 3, 2010, Ms. Abou‑Zahra explained this omission to a
citizenship officer by saying that she was in Lebanon when the
letter was sent. Then, she also stated that she had not lived in Canada since July 2009.
She only returned to Canada on January 31, 2010, three days
before the hearing scheduled for February 3, 2010. At the hearing, the citizenship
judge gave Ms. Abou‑Zahra an additional 20 days to produce the required
documents.
[8]
Ms. Abou‑Zahra
filed a relatively large amount of documentary evidence in support of her
application.
[9]
The
citizenship judge accepted Ms. Abou‑Zahra’s citizenship application
on February 24, 2010, but the only reasons given were in a brief paragraph
included in the form Notice to the Minister of the Decision of the Citizenship Judge.
[10]
The
Minister challenges the legitimacy of this decision on the basis that the
evidence disclosed an insufficient presence in Canada as well as discrepancies
in the evidence adduced. The Minister also alleges that the reasons for the decision
were inadequate having regard to paragraph 5(1)(c) of the Act and that the
decision did not take into account the consideration of the evidence. The
Minister submits that the citizenship judge applied a lower requirement than the
one set out in the Act.
Impugned decision
[11]
The
handwritten reasons for the impugned decision read as follows:
[translation]
I gave the applicant a
residence questionnaire and a period of 20 days to allow me to decide on 5(1)(c).
[Illegible] after examining today 24/02/2010 all the supplementary evidence
about residence that I was given, on a balance of probabilities, it appears
that the applicant established and maintained her residence in Canada during the critical period (2003-2007).
I approve her citizenship application. [Notice to the Minister of the Decision
of the Citizenship Judge]
[12]
The
Minister submits that the citizenship judge’s decision was unreasonable because
he made at least three reviewable errors:
a.
He did not
identify the legal test he relied on to determine whether the applicant had
satisfied the residence requirements, nor did he state whether he applied any
test to a specific series of facts;
b.
He did not
give reasons in support of his decision that demonstrate that he correctly
included, analyzed, considered or weighed all the documentary evidence that was
provided to him;
c.
He erred
in law by applying a lower requirement than the one mandated by the Act.
Relevant statutory
provisions
[13]
The
following provisions of the Citizenship Act apply to this application:
Grant
of citizenship
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.
Residence
(1.1)
Any day during which an applicant for citizenship resided with the
applicant’s spouse who at the time was a Canadian citizen and was employed
outside of Canada in or with the Canadian armed forces or the federal public
administration or the public service of a province, otherwise than as a
locally engaged person, shall be treated as equivalent to one day of
residence in Canada for the purposes of paragraph (1)(c) and
subsection 11(1).
. . .
Consideration by citizenship judge
. . .
Appeal
14. (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.
. . .
|
Attribution
de la citoyenneté
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.
Période
de résidence
(1.1)
Est assimilé à un jour de résidence au Canada pour l’application de l’alinéa
(1)c) et du paragraphe 11(1) tout jour pendant lequel l’auteur d’une
demande de citoyenneté a résidé avec son époux ou conjoint de fait alors que
celui-ci était citoyen et était, sans avoir été engagé sur place, au service,
à l’étranger, des forces armées canadiennes ou de l’administration publique
fédérale ou de celle d’une province.
…
Examen par un juge de la citoyenneté
…
Appel
14. (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.
…
|
Issues
[14]
The
following issues are raised in this application for judicial review:
a. Did the citizenship judge err
by finding that the application satisfied the conditions in paragraph 5(1)(c)
of the Act ?
b.
Are the
citizenship judge’s reasons for decision adequate?
Standard of review
[15]
The
Minister submits that even though subsection 14(5) of the Act refers to the
possibility of an “appeal”, it is settled law that what this involves in
reality is a judicial review, which attracts a reasonableness standard. In Pourzand
v. Canada (Minister of Citizenship and Immigration), 2008 FC 395, [2008] F.C.J.
No. 485, at paragraph 19, Mr. Justice Russell of this Court considered
the applicable standard of review for a citizenship judge’s finding as to
whether a person applying for citizenship meets the residence requirement:
[19] There has been general consensus in
the jurisprudence of this Court that the applicable standard of review for a
citizenship judge’s determination of whether an applicant meets the residency
requirement, which is a question of mixed fact and law, is reasonableness simpliciter
(Canada (Minister of Citizenship and Immigration) v. Chang, 2003 FC 1472; Rizvi v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1641; Chen v. Canada (Minister of Citizenship and Immigration),
2006 FC 85; Zhao v. Canada (Minister of Citizenship and Immigration),
2006 FC 1536). In
light of the Supreme Court of Canada’s recent decision in Dunsmuir v. New
Brunswick, 2008 SCC 9 [Dunsmuir], wherein the Court collapsed this
standard and the patent unreasonableness standards into one standard of
reasonableness, I find that the applicable standard of review as regards the
Citizenship Judge’s determination of whether the Applicant met the residency
requirement is reasonableness.
[16]
However,
the lack of adequate reasons to support the decision is a procedural fairness
issue. As this Court has repeatedly stressed, where the Court is seized with a
procedural fairness or natural justice issue, the appropriate standard of
review is correctness (see Chowdhury v. Canada (Minister of
Citizenship and Immigration), 2009 FC 709, [2009] F.C.J. No. 875,
at paragraph 29).
Analysis
[17]
In
this case, the designated period is between December 14, 2003, and
December 14, 2007. During these four years immediately preceding her
application for citizenship, Ms. Abou‑Zahra alleges that she spent a
total of 109 days outside of Canada and 1,351 days in Canada.
[18]
The
legal test that applies on citizenship appeals is set out in subsection 5(1) of
the Act. However, the term “residence” is not defined. As Madam Justice Tremblay‑Lamer
explained clearly in Mizani v. Canada (Minister of Citizenship and
Immigration) 2007 FC 698, [2007] F.C.J. No. 947, at paragraphs 10‑13,
the jurisprudence of this Court has interpreted the term “residence” in three
different ways:
[10] . . .
This Court’s interpretation of “residence”
can be grouped into three categories. The first views it as actual, physical
presence in Canada for a total of three years,
calculated on the basis of a strict counting of days (Pourghasemi (Re), [1993] F.C.J. No. 232 (QL) (T.D.)). A less
stringent reading of the residence requirement recognizes that a person can be
resident in Canada, even while temporarily absent, so long as he or she
maintains a strong attachment to Canada (Antonios E. Papadogiorgakis (Re),
[1978] 2 F.C. 208 (T.D.). A third
interpretation, similar to the second, defines residence as the place where one
“regularly, normally or customarily lives” or has “centralized his or her mode
of existence” (Koo (Re), 1992 CanLII 2417 (F.C.), [1993] 1 F.C. 286
(T.D.) at para. 10).
[11] I essentially agree with Justice James O’Reilly
in Nandre, above, at paragraph 11 that the first test is a test of
physical presence, while the other two tests involve a more qualitative
assessment:
Clearly, the Act
can be interpreted two ways, one requiring physical presence in Canada for three years out of four, and
another requiring less than that so long as the applicant's connection to Canada is strong. The first is a physical
test and the second is a qualitative test.
[12] It has also been recognized
that any of these three tests may be applied by a Citizenship Judge in making a
citizenship determination (Lam v. Canada (Minister of Citizenship and
Immigration), [1999] F.C.J. No. 410
(T.D.) (QL)). For instance, in Hsu v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 579, [2001] F.C.J. No. 862 (QL), Justice
Elizabeth Heneghan at paragraph 4 concludes that any of the three tests may be
applied in making a residency determination:
The case law on citizenship appeals has
clearly established that there are three legal tests which are available to
determine whether an applicant has established residence within the
requirements of the Citizenship Act (...) a Citizenship Judge may adopt either
the strict count of days, consideration of the quality of residence or,
analysis of the centralization of an applicant's mode of existence in this
country.
[Citations
omitted]
[13] While a Citizenship Judge may
choose to rely on any one of the three tests, it is not open to him or her to “blend”
the tests (Tulupnikov, above, at para. 16).
[19]
However,
it should be noted that recently the jurisprudence of this Court on this issue was
clarified following the decision of Mr. Justice Mainville 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. 330. I agree with those decisions.
[20]
Thus, as Justice Zinn explained in Elzubair, where a
citizenship judge finds that an applicant was physically present in Canada for
at least 1,095 days—the required minimum period—residence is proven, and resort to
the more contextual Koo test is unnecessary: Koo
(Re) (T.D.) [1992] F.C.J. No. 1107, [1993] 1 F.C. 286. The Koo
test need only be relied on where the applicant has been resident in Canada but
has been physically present in Canada for less than 1,095 days. In that
situation, citizenship judges must apply the Koo test to determine
whether the applicant was resident in Canada, even though not
physically present here (see also Canada
(The Minister of Citizenship and Immigration) v. Salim,
2010 FC 975, [2010] F.C.J. No. 1219 (Justice Harrington).
[21]
In
the case before us, the citizenship judge’s decision contains a major
shortcoming in that he did not clearly state which test he chose to apply. There
is nothing in the brief paragraph of reasons that enables us to identify what
the test was.
[22]
The
Minister also submits that there is no evidence establishing that Ms. Abou‑Zahra
demonstrated actual physical presence in Canada for a total
of three years during the designated period.
[23]
To
demonstrate an actual physical presence in Canada, Ms. Abou Zahra had
to prove that she was present in Canada for at least 1,095 days
during the relevant period, failing which her application would be rejected. On
this point, the evidence disclosed a contradiction. In her Application for
Canadian Citizenship, Ms. Abou‑Zahra stated that she had been
absent from Canada from June 20, 2007, to July 24, 2007; from
September 15, 2006, to October 14, 2006; from August 1, 2004, to
September 16, 2004; and from May 22, 2003, to July 15, 2003. In
her Residence Questionnaire that she filled out and submitted after her
hearing, she stated that she had been absent from July 15, 2006, to
October 14, 2006, i.e. a difference of two additional months spent outside
Canada.
[24]
The
Minister also submits that, despite the specific request in the letter dated
July 15, 2009, Ms. Abou‑Zahra did not provide a complete copy
of all her passports with all the pages, including the blank pages. Since she
had not complied with this request as of the date of the hearing with the
citizenship judge, he gave Ms. Abou‑Zahra a 20‑day extension. The
onus was on her to provide sufficient evidence demonstrating that she met the
residence criteria in the Act (see Rizvi v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1641, [2005] F.C.J. No. 2029, at
paragraph 21).
[25]
On
February 16, 2010, Ms. Abou‑Zahra finally submitted certain documents,
including partial copies of two of her three known passports. As counsel for
the Minister correctly notes, it is important to file all the pages of a
passport, including the blank pages, so that the decision‑maker can
ensure that all the entries and exits are clearly indicated in the various
questionnaires. The evidence in the record reveals that Ms. Abou Zahra
did not submit all the passports. She also provided only partial copies of the
passports that were submitted. For instance, the Court notes that the passport
issued to her in Beirut, Lebanon, on November 2, 1998—the validity of which
was extended to October 20, 2008—has significant parts of pages missing,
i.e. pages 6 and 7 and 12 to 43. Also, Ms. Abou Zahra did not mention
any absence from Canada prior to 2003 whereas the evidence indicates
that she was absent in 1995 at the very least because she gave birth to her son
in Lebanon (Tribunal
Record at page 71).
[26]
The
evidence in the record also establishes that Ms. Abou Zahra’s bank
account documents show activity for only three of the four months of statements
she provided and only on a minimal number of days.
[27]
Furthermore,
the tax documents Ms. Abou Zahra submitted do not establish her
actual residence in Canada. The copies of three cell phone bills and the
Visa statements are also incomplete and fragmentary.
[28]
In
his decision, the citizenship judge did not mention or attempt to explain the contradictions,
inconsistencies and omissions that the documentary evidence revealed.
[29]
The Court points out that in a recent judgment, Canada (Minister
of Citizenship and Immigration) v. Mahmoud, 2009 FC 57, [2009] F.C.J. No.
91, at paragraph 6, Mr. Justice Roger Hughes wrote that because the
Minister—or a citizenship applicant—has no recourse other than to appeal to the
Court and because citizenship must be granted if a citizenship judge makes a
favourable recommendation, “. . . the provision of reasons
by the citizenship judge assumes a special significance. The reasons should be
sufficiently clear and detailed so as to demonstrate to the Minister that all
relevant facts have been considered and weighed appropriately and that the
correct legal tests have been applied.”
[30]
After
reviewing the evidence and the citizenship judge’s reasons for decision, the
Court finds that the citizenship judge did not examine, weigh and analyze the
evidence, which contained major shortcomings. In these circumstances, his
decision is unreasonable and the Court’s intervention is warranted.
Consequently, the Court allows the appeal.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES THAT
1.
The
appeal is allowed.
2.
The
matter is remitted to a different citizenship judge for reconsideration.
“Richard
Boivin”
Certified true
translation
Mary Jo Egan, LLB