Date: 20090320
Docket:
T-924-08
Citation:
2009 FC 299
Ottawa, Ontario, March
20, 2009
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
Zein
FARAG
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Zein Farag (the
Respondent) applied for Citizenship on March 19, 2003. On April 11, 2008,
Citizenship Judge Bitar (the Judge) determined that the Respondent had
satisfied the residency requirement of paragraph 5(1)(c) of the Citizenship
Act, R.S.C. 1985, c. C-29 (the Act) and granted his application.
[2]
The Minister of
Citizenship and Immigration appeals the judge’s determination by way of
judicial review of the decision pursuant to subsection 14(5) of the Act, on the
grounds that the citizenship judge:
(1) erred
in law by failing to determine whether the respondent had initially established
residence in Canada;
(2) erred
by making findings of fact without regard to the material before her, and
(3) failed
to observe a principle of natural justice by providing inadequate reasons for her
decision.
[3]
The Minister asks me
to allow the appeal and set aside the decision. For the following reasons I
will allow the appeal.
I.
Facts
[4]
The Respondent is a
citizen of France originally from Egypt. He was sponsored by his former spouse and was landed in Canada on October 24, 1998. He became a permanent resident that
same day.
[5]
In 2002, the
Respondent and his wife divorced. The Respondent lost custody of the children
as well as access to the Matrimonial home.
[6]
The Respondent
applied for Citizenship on March 19, 2003. The applicable review period was
therefore the period between March 18, 1999 and March 19, 2003.
[7]
On February 18, 2005,
the Respondent was issued a departure order because a Minister’s delegate
determined that the Respondent was a person described in subsection 41(b) of
the Immigration and Refugee Protection Act S.C. 2001, c. 27 (IRPA)
for failing to comply with the residency obligations in section 28 of the
IRPA. The Respondent appealed the departure order to the Immigration Appeal
Division (IAD).
[8]
On September 26,
2007, the IAD allowed the Respondent’s appeal on grounds that humanitarian and
compassionate considerations including the best interests of children warranted
granting special relief in the circumstances. However, the IAD found that, on
the evidence before it, the Respondent’s primary residence from May 1999 to May
2004 was France, and that the reason for his many absences from Canada was his intent to continue business operations in France. In addition, the IAD found no reliable evidence supporting
the Respondent’s claim that he had tried to establish himself in Canada since
his landing or had made a reasonable attempt to return to Canada at the first opportunity.
[9]
On November 21, 2007,
the Respondent renewed his efforts to obtain Canadian citizenship and completed
a revised Residence Questionnaire indicating that his initial calculation for
absences during the relevant review period was incorrect (he claims to have
misread the question), to which he attached a hand-written schedule showing 300
days of absences from Canada during this same review period.
[10]
A Citizenship Officer
(the Officer) reviewed the renewed application and noted that the photocopy
provided of a passport was missing pages and was partly illegible. The Officer
concluded that the Respondent had stayed outside of Canada voluntarily to run his business in France during the review
period, that his trips to Canada constituted a pattern of visiting, and
that he had not established himself permanently in Canada. In addition, the Officer was unable to establish the exact
length of the Respondent’s physical presence in Canada
because of insufficient documentation.
[11]
This same Officer
prepared a Hearing Form on January 19, 2008, noting that she was unable to
assess the Respondent’s physical presence in Canada
and that the Respondent’s photocopy of his passport could not be used to
ascertain physical presence as pages were missing and it was illegible.
[12]
On February 4, 2008,
the Respondent appeared at his hearing before the Judge. The Judge granted the
Respondent’s citizenship on April 11, 2008 and notified the Minister of her
decision.
II.
Impugned Decision
[13]
I summarize below the
findings upon which the Judge based her decision. In her decision the Judge
refers to the Respondent as “the client”.
- The
client’s physical absence from Canada was for business reasons only;
- The
client’s connection with Canada is very strong;
- Despite
being now divorced and alienated from his children, the client works at Ft. McMurray and hopes that the situation with his family
will improve;
- The
client’s date of landing was 24 October 1998 and in 1999 he spent 20 days
in France for business. His revised Residence
Questionnaire indicates that he had been absent Canada for 300 days, and this matches what
appears in his “3 passports”;
- The
client’s ex-wife and three children, his two brothers and his sister are
in Canada. Other members of his family are in
Egypt and France;
- During
the hearing, the client stated that since 1999, he has always lived in
Canada but would travel to France on occasion for business;
- During
the hearing, the client was very cooperative and was aware he was under
oath; and
- The
client has his children’s best interests in mind.
[14]
The Judge ended the hearing
by requesting, within 30 days, a letter from the Respondent’s manager in France detailing his role in the business and length of stay in
France, as well as a letter confirming his employment at Fort McMurray – both to be written under oath. The
Judge also requested documents from the Respondent’s membership at Clubfit as
well as receipts from his child support payments.
[15]
These documents were
received and considered by the Judge before rendering her final decision. No
further reference is made to these documents or to their content in the Judge’s
decision. There are no additional reasons provided concerning the content of
these documents.
III.
Issues
[16]
The Applicant raises
the following issues:
(1) Did the Judge fail to observe
a principle of natural justice by providing inadequate reasons for her
decision?
(2) Did the Judge err by failing
to determine whether the respondent had initially established residence in Canada?
(3) Did the Judge err by
misapplying the Koo factors?
IV.
Standard of Review
[17]
Adequacy of reasons is a question of procedural fairness and natural
justice reviewable on a standard of correctness. See: Canada
(Minister of Citizenship and Immigration) v. Arastu 2008 FC 1222, at para.
21.
[18]
Whether an applicant meets the residency requirement involves a question
of mixed fact and law. On such questions Citizenship Judges are owed a degree
of deference by reason of their special knowledge and expertise in these
matters. The jurisprudence of this Court has established the applicable
standard of review for such a question to be reasonableness. Zhang v. Canada
(Minister of Citizenship and Immigration) 2008 FC 483, at para. 7-8.
[19]
Whether the Citizenship Judge misapplied the proper legal test for
residency is a question of law reviewable on the standard of correctness. See
also David Dunsmuir v. Her Majesty the Queen in Right of the Province
of New Brunswick, [2008] S.C.J. No. 9, 2008 SCC 9.
V. Statutory
Scheme
[20]
The grant of citizenship is governed by section 5 of the Act, which I
reproduce below.
|
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.
|
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.
|
VI. Analysis
The law
[21]
A two-stage inquiry exists with respect to the residency
requirements of paragraph 5(1)(c) of the Act. Mme Justice Layden-Stevenson
described the approach to be followed in Goudimenko v. Canada (Minister of Citizenship and
Immigration) [2002] FCT
447, at paragraph 13:
At
the first stage, the threshold determination is made as to whether or not, and
when, residence in Canada has been established. If residence has
not been established, the matter ends there. If the threshold has been met,
the second stage of the inquiry requires a determination of whether or not the
particular applicant’s residency satisfies the required total days of
residence. It is with respect to the second stage of the inquiry, and
particularly with regard to whether absences can be deemed residence, that the
divergence of opinion in the Federal Court exists.
[22]
The Act does not
define "residency". As stated above, there has been divergence in
this Court as to the test to be applied in determining whether an applicant has
satisfied the residence requirements. In short, these tests are those set out
in Koo, Pourghesemi, and Papadogiorgakis. A citizenship judge may
adopt any of the three residency tests, and not be in error, provided they
apply the relevant principles to the facts of the case.
[23]
The Applicant argues
that the Judge failed to provide adequate reasons for her decision, failed to
determine if the Respondent had established residency in Canada and erred by misapplying the Koo factors.
[24]
This case will turn
on the adequacy of the Judge’s reasons and whether she turned her mind to the first
stage inquiry in respect to the threshold question of whether or not the
Respondent had established residence in Canada.
[25]
The Pourghasemi
test, [1993]
F.C.J. No. 232 (Lexis), requires an applicant be physically present
in Canada for at least 1095 days. The other two
tests take more flexible approaches to the residency requirement. For example
the Koo test, [1992]
F.C.J. No. 1107 (Lexis), requires an assessment of an applicant's
absences from Canada with the aim of determining what kind of connection an
applicant has with Canada and whether the applicant "regularly, normally
or customarily lives" in Canada.
[26]
The standard form,
employed by the Citizenship Judge in this case, creates a presumption, that the
Citizenship Judge is following the Re Koo approach to residency. There
is no dispute here that the judge applied the Re Koo test. However, the
presumption does not extend to the first stage inquiry. The Judge made no
express finding as to whether or not, and when, the Respondent had established
residence in Canada. At pages 3 and 4 of the notice of
decision to the Minister, the Judge indicated that the Respondent’s connection
to Canada is very strong; his date of landing was October 24, 1998; his first
trip to France was in 1999; and that, according to what he said, he always
lived in Canada since 1999, but occasionally he will travel to France because
of his 50% ownership in a supermarket.
[27]
Apart from the above
factors considered by the Judge, there was other evidence before her which
supported the contention that the Respondent had not established residency in Canada in the applicable time period. Both the Citizenship Officer
who referred the matter to the Judge and the IAD concluded that residency had
not been established by the Respondent in the applicable time period. The IAD
cited the Respondent’s April 17, 2002 affidavit before the Alberta Court of
Queen’s Bench, wherein he attests that, “[W]hile I am still residing in France, I do verily believe that it is reasonable for me to have
access to the children several times per year.” It is true that the record
before the IAD is not the same as the record before the Judge, however, both
proceedings dealt with the Respondent’s establishment in Canada.
[28]
It was incumbent on
the Judge to make a clear finding on the threshold question of establishment in
Canada which she did not do. Even with a
generous read of the reasons, it cannot be discerned that the Judge turned her
mind to the above findings of the IAD and Citizenship officer which squarely
contradict a finding of the Respondent’s establishment in Canada during the applicable period. Having failed to expressly
deal with this evidence, I am left to conclude the Judge erred by deciding the
application without regard to the material before her. In the circumstances
this amounts to a reviewable error.
[29]
I also find the
Judge’s reasons to be inadequate. Given the nature of the evidence before her
regarding the Respondent’s pattern of establishment in Canada during the applicable period, clear reasons would have been
required by the Judge on the threshold question of residency. By failing to
provide sufficient reasons, the Judge committed a reviewable error.
VII.
Conclusion
[30]
For the above reasons
the appeal will be allowed. The judge’s decision granting the Respondent
citizenship is set aside. The matter will be sent back for reconsideration by a
different citizenship judge to be decided in accordance with the above reasons.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. The appeal is allowed.
2. The April 11,
2008, decision of the Citizenship Judge granting the Respondent citizenship is set
aside.
3. The matter is sent
back for reconsideration by a different citizenship judge to be decided in
accordance with the above reasons.
“Edmond P. Blanchard”
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