Date: 20090709
Docket: T-587-08
Citation: 2009 FC 709
Ottawa, Ontario, July 9,
2009
PRESENT: The Honourable Max M. Teitelbaum
BETWEEN:
SHAMS
RIYAD CHOWDHURY
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an appeal brought under section 21 of the Federal Courts Act, R.S., 1985, c. F-7
(Federal Act),
subsection 14(5) of the Citizenship Act, R.S., 1985, c. C-29 (Act) and
Rule 300(c) of the Federal Courts Rules, SOR/98-106 (Rules) of
the decision of a Citizenship Judge (Judge), dated February 15, 2008 (decision),
rejecting the Applicant’s application for Canadian Citizenship based on
subsection 5(1)(c) of the Act.
[2]
On
May 16, 1998, the Applicant married a Canadian Citizen, Begum Khanum.
[3]
The
Applicant is originally from Sylhet, Bangladesh and came to Canada as a landed
immigrant on August 25, 2000 pursuant to being sponsored by his wife.
[4]
The
Applicant has allegedly lived exclusively in Canada from the
time of his landing in August 2000, until he filed his citizenship application
in June 2004. He allegedly continues to live exclusively in Canada with his
Canadian wife and Canadian daughter, Ummatuz Chowdhury.
[5]
Since
his arrival in Canada on August 25, 2000, the Applicant has been
absent from Canada for a total
of 330 days. On February 18, 2002 the Applicant left Canada and traveled to the
United Kingdom and spent 177 days there visiting the Applicant’s wife’s
relatives and for the Applicant’s wife to give birth to their daughter and his
wife’s consequent recovery post-partum; on November 21, 2002, the
Applicant left Canada and traveled to Bangladesh where he spent 117 days
visiting his mother who was ill in Bangladesh and introducing his daughter to
her grandparents and relatives there. On April 3, 2004, the Applicant left
Canada and traveled to Bangladesh where he spent 37 days
to attend his brother’s wedding combined with visiting his family’s relatives.
[6]
On
each occasion the Applicant states that he and his wife and child returned to Canada, with the
exception of once, where his wife and daughter stayed a few more weeks in Bangladesh to see more
relatives.
[7]
The
Applicant submitted his application for Canadian citizenship in June 2004. He
was physically present in Canada for 1058 days, 37 days short of the
required 1095 days.
[8]
The
Applicant alleges that he has worked in Montreal for various
employers for several periods of time, which has been interspersed with social
assistance. Since his arrival in Montreal, the Applicant has
allegedly always lived at the same address with his family, which is at 8350
Querbes.
[9]
The
Applicant has a medicare card, a driver’s licence, valid permanent residence
card, joint bank account with his wife, a telephone registered to his home address.
He has filed income tax returnsfor each year he has been in Canada with proof
of his income and his daughter is enrolled in pre-school and going to
kindergarten. The Applicant’s wife has worked, received maternity pay and
social assistance on occasion and she receives rent from their home and regularly
files her income tax returns.
[10]
After
the Applicant filed his citizenship application in June 2004, he was asked in
May 2005 to submit his fingerprints for verification by the RCMP. In February
2006, he was called into CIC offices in Montreal to complete
a residence form. There was a further request to update the Applicant’s file
with the RCMP in January or February 2007.
[11]
On
November 7, 2007, after a postponement made by a Citizenship Judge, the
Applicant presented himself for a hearing before a Citizenship Judge. The
Applicant alleges that he brought the requested documents mentioned on the
Notice to Appear. The documents were allegedly not asked for or received by the
Judge.
[12]
At
the end of the hearing, the Judge asked for further proof that the Applicant
had been residing in Canada from 2000 to 2007. The Applicant sent the documents
that were requested for the hearing and some additional documentation to show
his residence and establishment in Canada to CIC via ExpressPost
on November 9, 2007.
[13]
In
early January 2008, in the Applicant’s presence, the Applicant’s wife called
the CIC telecentre to ask when there would be a decision on her husband’s
citizenship application. On February 15, 2008, the Judge rejected the Applicant’s
claim. This decision was received by the Applicant on February 18, 2008.
[14]
The
Applicant served and filed a Notice of Application for Judicial Review of this decision
on April 14, 2008.
[15]
The
Judge outlines the question at issue as: Whether the Applicant meets the
residence requirements under paragraph 5(1)(c) of the Act.
[16]
The
Judge comments that the Applicant does not provide any evidence that he and his
family live at a specific address in Montreal since his arrival in Canada. He also does
not provide support for his declaration that he has worked in Canada since his
arrival in Canada. Although
the Applicant provides bank books for 2000, 2001, 2002 and 2003 to show
activity in his bank accounts, the Judge notes that the income tax papers of
the Applicant do not show any meaningful income for the period in question. The
income tax documents do show that the applicant did in fact, sporadically, work
in Montreal.
[17]
The
Judge states that after considering all of the evidence on file, “the documents
provided by the applicant are insufficient and incomplete”. Therefore, because
of the lack of proof, the Judge held that “this applicant has not demonstrated
that he meets the residence requirements under paragraph 5(1)(c)”.
[18]
The
Judge did not approve the Applicant’s citizenship application.
ISSUES
[19]
The
Applicant submits the following issues on this application:
a. The Judge
rendered an unreasonable decision having committed at least three reviewable
errors:
i.
She
failed to specify which legal test she relied on to determine whether the
Applicant fulfilled his residency requirements or to apply a, or any, given
test to a specific series of facts;
ii.
She
failed to give reasons for her decision to show any indication of having
properly included, analysed, considered or weighed all the evidentiary
documentation before her;
iii.
If
she relied on the flexible test in Re Papadogiokakis (1978) 2
F.C. 208 (F.C.T.D.) (Papadogiokakis) expanded upon in Re Koo,
[1993] 1 F.C. 286(F.C.) (Koo), she failed to apply it properly to the
facts of the case and utterly failed to assess it in regards to the Applicant’s
real establishment and obvious connection to Canada.
[20]
The
following provision of the Act is applicable 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.
|
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.
|
[21]
The
following provision of the Rules is applicable to this application:
Application
300.This Part applies to
(a) applications for judicial
review of administrative action, including applications under section 18.1 or
28 of the Act, unless the Court directs under subsection 18.4(2) of the Act
that the application be treated and proceeded with as an action;
(b) proceedings required or
permitted by or under an Act of Parliament to be brought by application,
motion, originating notice of motion, originating summons or petition or to
be determined in a summary way, other than applications under subsection
33(1) of the Marine Liability Act;
(c) appeals under subsection
14(5) of the Citizenship Act;
(d) appeals under section 56
of the Trade-marks Act;
(e) references from a
tribunal under rule 320;
(f) requests under the
Commercial Arbitration Code brought pursuant to subsection 324(1);
(g) proceedings transferred
to the Court under subsection 3(3) or 5(3) of the Divorce Act; and
(h) applications for registration, recognition or
enforcement of a foreign judgment brought under rules 327 to 334.
|
Application
300.La
présente partie s’applique:
a) aux demandes de contrôle judiciaire de mesures administratives,
y compris les demandes présentées en vertu des articles 18.1 ou 28 de la Loi,
à moins que la Cour n’ordonne, en vertu du paragraphe 18.4(2) de la Loi, de
les instruire comme des actions;
b)
aux instances engagées sous le régime d’une loi fédérale ou d’un texte
d’application de celle-ci qui en prévoit ou en autorise l’introduction par
voie de demande, de requête, d’avis de requête introductif d’instance,
d’assignation introductive d’instance ou de pétition, ou le règlement par
procédure sommaire, à l’exception des demandes faites en vertu du paragraphe
33(1) de la Loi sur la responsabilité en matière maritime;
c)
aux appels interjetés en vertu du paragraphe 14(5) de la Loi sur la
citoyenneté;
d)
aux appels interjetés en vertu de l’article 56 de la Loi sur les marques
de commerce;
e)
aux renvois d’un office fédéral en vertu de la règle 320;
f)
aux demandes présentées en vertu du Code d’arbitrage commercial qui sont
visées au paragraphe 324(1);
g)
aux actions renvoyées à la Cour en vertu des paragraphes 3(3) ou 5(3) de la Loi
sur le divorce;
h) aux
demandes pour l’enregistrement, la reconnaissance ou l’exécution d’un
jugement étranger visées aux règles 327 à 334.
|
[22]
The
Applicant submits that the standard of review in cases such as this is
reasonableness simpliciter: Eltom v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1555 (Eltom) at paragraph
14.
[23]
The
Respondent submits that the appropriate standard of review regarding
citizenship judges’ decisions is reasonableness: Zhang v. Canada (Minister of
Citizenship and Immigration) 2008 FC 483. The Respondent notes that the
role of the Court is not to substitute its opinion for that of the judge, but
to verify if the judge properly applied the residency test chosen: Chen v.
Canada (Minister of Citizenship and Immigration) 2007 FC 1140 (Chen).
Therefore, the Judge’s decision must be considered with deference: Paez v. Canada (Minister of
Citizenship and Immigration) 2008 FC 204.
[24]
When
answering the question of whether a person has met the residency requirements
under the Act, it is a question of mixed law and fact, so the appropriate
standard of review is reasonableness: Dunsmuir v. New Brunswick 2008 SCC
9 at paragraphs 44, 47, 48 and 53; Mueller v. Canada (Minister of
Citizenship and Immigration) 2005 FC 227 at paragraph 4; Wall v. Canada
(Minister of Citizenship and Immigration) 2005 FC 110 at paragraph 21; Zeng
v. Canada (Minister of Citizenship and Immigration) 2004 FC 1752 at
paragraph 7-10; Chen v. Canada (Minister of Citizenship and Immigration)
2004 FC 1693 at paragraph 5l Rasaei v. Canada (Minister of Citizenship and
Immigration) 2004 FC 1688 at paragraph 4 and Gunnarsson v. Canada
(Minister of Citizenship and Immigration) 2004 FC 1592 at paragraphs 18-22.
[25]
The
Court in Haj-Kamali v. Canada (Minister of
Citizenship and Immigration) 2007 FC 102 (Haj-Kamali) states at
paragraphs 7-10 that:
7 Both
parties accept that the standard of review for pure factual findings of the Citizenship Court (e.g. the duration of
Mr. Haj-Kamali's absences from Canada) is patent unreasonableness. This is in accordance with a
number of authorities from this Court and I would specifically adopt the
analysis by Justice Richard Mosley in Huang v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1078,
2005 FC 861, where
he held in paragraph 10:
[10] However, for purely factual findings the respondent
submits the standard should be patent unreasonableness. The Citizenship Judge
as the finder of fact has access to the original documents and an opportunity
to discuss the relevant facts with the applicant. On citizenship appeals, this
Court is a Court of appeal and should not disturb the findings unless they are
patently unreasonable or demonstrate palpable and overriding error: Housen v.
Nikolaisen, [2002] 2 S.C.R. 235.
8 The
application of the facts to the law concerning residency under the Act is, of
course, a matter of mixed fact and law for which the standard of review is
reasonableness simpliciter. Here I adopt the analysis of Justice Mosley
in Zeng v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 2134,
2004 FC 1752 where
he held at paragraphs 9 and 10 as follows:
9 Applying a pragmatic and functional analysis to the
review of the decisions of citizenship judges respecting the residency
requirement of the Act, several judges of this court have recently concluded
that a more appropriate standard would be reasonableness simpliciter: Chen
v. Canada (Minister of Citizenship and Immigration) 2004 FC 1693, [2004] F.C.J. No. 2069;
Rasaei v. Canada (Minister of Citizenship and Immigration) 2004 FC 1688, [2004] F.C.J. No. 2051;
Gunnarson v. Canada (Minister of Citizenship and Immigration) 2004 FC 1592, [2004] F.C.J. No. 1913;
Canada (Minister of Citizenship and Immigration) v. Chen 2004 FC 848, [2004] F.C.J. No. 1040;
Canada (Minister of Citizenship and Immigration) v. Fu 2004 FC 60, [2004] F.C.J. No. 88;
Canada (Minister of Citizenship and Immigration) v. Chang 2003 FC 1472, [2003] F.C.J. No. 1871.
10 I agree that the question of whether a person has met
the residency requirement under the Act is a question of mixed law and fact and
that Citizenship Judges are owed some deference by virtue of their special
degree of knowledge and experience. Accordingly, I accept that the appropriate
standard of review is reasonableness simpliciter and that, as stated by Snider
J. in Chen, supra at paragraph 5, "as long as there is a
demonstrated understanding of the case law and appreciation of the facts and
their application to the statutory test, deference should be shown."
9
It was argued on behalf of Mr. Haj-Kamali that the Citizenship Court made two principal
errors in its assessment of his application for citizenship. The first of these
was a factual error in the calculation of Mr. Haj-Kamali's absences from Canada. It was submitted
that this error led the Court to overstate the duration of Mr. Haj-Kamali's
absences by 136 days out of the shortfall of 307 days which the Court found
were necessary to satisfy the strict numerical threshold for residency.
10 The second error
attributed to the Citizenship Court concerned its adoption and application of the legal test
for residency under s.5(1) of the Act. Mr. Haj-Kamali contends that, had the Citizenship Court not made an erroneous
finding with respect to the time he remained outside of Canada, it might have
concluded that he had met the statutory residency requirement. This issue
necessarily turns on which of the tests for determining residency was used by
the Citizenship
Court in
assessing Mr. Haj-Kamali's application. If the Citizenship Court adopted the
strict or literal approach for residency as reflected in decisions like Re
Pourghasemi (1993), 62 F.T.R. 122,
[1993] F.C.J. No. 232,
the alleged factual error by the Citizenship Court would be of no legal
significance. This would be so because Mr. Haj-Kamali would still not have
established an actual physical presence in Canada for 1,075 days within the four years
preceding his citizenship application. On the other hand, if the Citizenship Court adopted one of the
more flexible or liberal tests for residency as reflected in cases like Re
Koo, above, and Re Papadogiorgakis, above, it is argued that its
alleged factual error might have made a difference to the outcome of the case.
[26]
In Dunsmuir, the Supreme
Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review”: Dunsmuir at paragraph 44.
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[27]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[28]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to these issues to be reasonableness, with the exception of the
procedural fairness issue. When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the existence of
justification, transparency and intelligibility within the decision-making
process [and also with] whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
[29]
The
issue raised concerning the adequacy of reasons is a question of procedural
fairness and natural justice reviewable on a standard of correctness: Andryanov
v. Canada (Minister of Citizenship and Immigration) 2007 FC 186 at
paragraph 15; Jang v. Canada (Minister of Citizenship and Immigration) 2004
FC 486 at paragraph 9 and Adu v. Canada (Minister of Citizenship and
Immigration) 2005 FC 565 at paragraph 9.
[30]
The
Applicant submits that there are divergent tests to determine if an Applicant
has met the residency requirements of the Act. The Applicant cites the tests in
Mizani v. Canada (Minister of Citizenship and Immigration) 2007 FC 698 (Mizani)
at paragraph 10, Re Pourghasemi, [1993]
F.C.J. No. 232 (F.C.T.D.) and Papadogiorgakis and Koo. The
Applicant concluded that this case falls squarely under the “rubric of
regularly, normally and customarily living in Canada espoused
by the rulings and guidelines in Re Papadogiorgakis, Re Koo and Re Ng”.
[31]
The
Applicant submits that he was physically present in Canada for a long period of
time before his application for citizenship; his wife and dependent minor child
reside in Canada along with his in-laws; his pattern of leaving Canada was for
major family events such as birth, marriage and illness as well as presenting
his daughter to relatives overseas; he is approximately one month short of the
1095 days; his physical absence was for a clearly temporary situation and he in
fact returned to Canada while his wife stayed a while longer in Bangladesh; and
he has substantial connections with Canada (more than in any other country) and
is established here and fully intends to reside here (as he has done so since
his arrival 8 years ago in 2000).
[32]
The
Applicant also states that he remained in Canada since his
last family trip overseas on May 10, 2004, which in and of itself denotes a
‘quality of attachment’ at the very least and establishes residence.
[33]
The
Applicant notes that whatever citizenship test is relied upon, where a Judge is
ambiguous, the decision cannot stand: Seiffert v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1072 (Seiffert); Haj-Kamili;
Zhao v. Canada (Minister of Citizenship and Immigration) 2006 FC 1536
(Zhao) and Sio v. Canada (Minister of Citizenship
and Immigration), [1999] F.C.J.
No. 422 (Sio).
[34]
The Applicant relies upon
paragraphs 26-28 of Eltom:
[26]
There has been some concern in the jurisprudence
about the differences in emphasis over the residency requirement, but also a
recognition that without the possibility of an appeal to the Federal Court, it
is up to Parliament to remedy the situation (see for example: Zhang v.
Canada (Minister of Citizenship and Immigration, [2005] F.C.J. No. 1943). In Lam, Lutfy
J. (as he then was) held that
...
it is open to the citizenship judge to adopt either one of the conflicting
schools in this Court and, if the facts of the case were properly applied to
the principles of the chosen approach, the decision of the citizenship judge
would not be wrong. (para 14).
[27]
This reasoning has been largely adopted in the case
law (see for example: Seiffert v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 1326, Lama
c. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] A.C.F. No. 576), though there are
exceptions. The 2001 decision in Chen v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 1229 (Can :LII), [2001] F.C.J. No. 1693, 2001 FCT 1229, specifically rejects the
decision in Lam saying that "[t]he fact that decisions of the Trial
Division cannot be appealed to the Court of Appeal is regrettable but cannot,
in my view, give rise to a hybrid interpretation of the statute" (para
13). This judgment acknowledges that only Parliament can remedy the existence of
divergent tests but suggests that Federal Court judges can apply the test that
they believe to be correct, rather than deferring to the election of the
citizenship judge (para 15).
[28]
While the Koo test appears to have become the dominant
test, apparently in part because the six questions were specifically set out on
a form used by citizenship judges, in the 2005 decision of Canada (Minister
of Citizenship and Immigration) v. Wall, 2005 FC 110 (CanLII), [2005] F.C.J. No. 146, 2005
FC 110, Mr. Justice Harrington reaffirmed the continuing
availability of other tests.
[35]
The
Applicant submits that he should not be left to wonder how his case is decided
as a matter of procedural fairness and natural justice: Haj-Kamali. The
Judge neglected to “mention the legal test she employed, neglected to include
all the documents presented by the Applicant himself…chose to include some
documents and omit others in her ‘reasons’, and as a result the decision itself
is so badly worded and contradictory as to render it ambiguous and thus
unsafe.”
[36]
The
Applicant also states that it appears that the Judge was applying the strict
numeric physical criteria to his case and “then employed a very vague and
utterly confusing “qualitative” test”. The Applicant then alleges that the
Judge resorted to mentioning the exercise of discretion in cases of special or
unusual hardship and that the Applicant was deficient in providing any
evidence, which the Applicant thought was “an ambiguous and generalising
statement with no explanation of the sufficiency required and as such her
decision cannot stand”.
[37]
The
Applicant states that on November 7, 2007, the Applicant presented voluminous
documentary evidence to the Judge in support of his application, namely his
passport clearly stamped, his driver’s licence, birth certificate, record of
landing, permanent residence card and medicare card.
[38]
The
Applicant alleges that the Judge concentrated on questions dealing with the
Applicant’s marriage, the sponsorship procedures, how the Applicant came to Canada, and whether
he had children. The Applicant states that he explained all of the
circumstances and answered the Judge’s questions honestly and openly. The
Applicant also expressed that he had worked in Canada and had been on social
assistance, had left Canada for three family occasions, identified
where he lived, and that both his wife and daughter were dual Canadian and UK citizens. At
the end of the hearing, the Judge asked the Applicant to bring more
documentation to prove that he resided in Canada from 2000 to
2007. The Applicant did so and also sent some other documentation.
[39]
The
Applicant states that he was not told which specific documents the Judge wanted
to see. The Applicant alleges that had the Judge been more specific with the documentation
she desired, the Applicant would have brought more documentation that would
have “even more convincingly demonstrated that he resides here in Canada and always
has since his arrival.” The Applicant was also not “asked in more detail about
the documents [the Judge] purported to consider or clear up any doubt she may
have had about his documentation.” See: Abdollahi-Ghane v. Canada (Attorney
General) 2004
FC 741.
[40]
The
Applicant submits that like “a lot of people” he does not keep all his pay
receipts, social assistance receipts nor utility bills. Therefore, it was
difficult to produce copious amounts of bills, especially going back 3 to 7
years. However, he presented the work papers and tax papers that he could find.
[41]
The
Applicant stressed that he and his wife receive some rental income from a
property owned by the wife’s parents, which has been “reported to social
assistance authorities at all times.” The Applicant insists that he was
not “asked at the hearing to show a lease or to provide any other proof concerning
his home, all of which he had but did not bring.”
[42]
The
Applicant submits that the Judge was “clearly wrong” in that she did receive
documentation. She was acting “unreasonably” by stating that the documentation
wasn’t sufficient and there was “no analysis of the documentation that was most
definitely before her.”
[43]
The
Applicant speculates whether the Judge looked at the documents in their
entirety “since it is self evident from her reasons that she completely ignores
certain documents which any reasonable person would not only consider and
mention but clearly these are pertinent documents to show indicia of
[the] Applicant’s established residence and ‘quality of attachment’ in Canada…”
[44]
The
Applicant comments on the Judge’s statement that he did not show any meaningful
income. The Applicant questions what this means and comments that the Judge did
not take into account his wife’s income, nor was there a consideration of his
tax returns for 2005 and 2006. The Applicant states that the Judge “seemed confused
(at best) as to the amounts entering their joint account where they had direct
deposits from their social assistance cheques and deposits from their various
employment.
[45]
The
Applicant alleges that the “Judge made up her own test or conclusions without
asking further explanation from the Applicant…depriving him a chance to fully
explain his, and his family’s finances and ultimately resulting in his citizenship
application being refused”. The Applicant states that the Judge’s decision is
reviewable “if she fails to provide a proper analysis of the evidence, to
consider all relevant factors or to give reasons”. See: Seiffert at
paragraphs 9-10; Fung v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1440 and Eltom
at paragraphs 29-31.
[46]
The
Applicant states that: the Judge made a peculiar inventory of the evidence
before her by omitting evidence, ignoring evidence and was “plainly wrong when
she stated there was no proof when there was”; she denied documents were
presented then contradicted herself; wrote “reasons in point form employing all
the errors mentioned above and issued a form letter of refusal with no analysis
of documents before her nor any mention of the test applied other than to imply
that she is counting the actual days of physical presence and thus applying
a strict approach”.
[47]
The Applicant points out that the Judge erred in stating his
age as 50, when in fact he was 40 at the time of the hearing.
[48]
The
Applicant submits that the flexible, more liberal test for citizenship found in
Re Ng, [1996] F.C.J. No. 1357 (F.C.T.D.); Koo; Yen (Re), [1997]
F.C.J. No. 1340 (F.C.T.D.), Huang v. Canada (Minister of Citizenship and
Immigration),[1998] F.C.J. No. 788 (F.C.T.D.) and Hajjar (Re), [1998]
F.C.J. No. 168 (F.C.T.D.) is “settled law”. The Applicant also notes that there
have been cases where applicants have been granted citizenship even though they
traveled extensively outside of Canada for business purposes and returned home
to Canada. See: Sio
v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 422.
[49]
The
Applicant notes that he is not an international businessman but a man who “has
established himself and his family in this country in actuality and with
continued intention to continue residing here with his family”.
[50]
The
Applicant cites Canada (Minister of Citizenship and Immigration)
v. Hung,
[1998]
F.C.J. No. 1604 at paragraph 9:
9 Centralizing your mode of existence
in Canada requires more than
just maintaining a domicile in Canada with an mere intent to return. Noël J. stated in Re Lai (1994), 85 F.T.R. 62
at pp. 63-64 (F.C.T.D.):
In cases where physical absence is encountered during a
statutory period, proof of continued
residence will require evidence as to the temporary nature of the absence, a
clear intent to return and the existence of sufficient factual ties with Canada
to assert residence in fact during the period (...) where a businessman
established Canada as his place of abode by setting up his matrimonial home and
family there, he is permitted to travel within reason to earn a living.
[51]
The
Applicant makes the following summary of his submissions:
a.
…the
Citizenship Judge failed to specify which legal test she relied on to determine
whether [the] Applicant fulfilled his residency requirements; she failed to
apply a, or any, given test to a specific series of facts; failed to give
adequate detailed reasons for her decision or show any indication of having
carefully weighted the evidence before her and lastly, if the Citizenship Judge
relied on the flexible test she failed to apply it properly to the facts of the
case and she utterly failed to assess the Applicant’s connection to Canada.
b.
As such
the Judge’s decision was made in a capricious, perverse and manifestly unreasonable
manner and is therefore unsafe and cannot stand.
[52]
The
Respondent submits that the Applicant has not demonstrated that the Judge
committed a reviewable error warranting this Court’s intervention.
[53]
The
Respondent points out that this Court in Mizani at paragraphs 10-12
identifies three possible interpretations of residence at paragraph 5(1)(c) of
the Act and that a judge is free to apply any of the three interpretations:
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), [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.
[54]
The
Respondent submits that the reasons for the decision of the Judge favoured the
more strict approach of ‘physical presence’ in Canada and did not
try to determine whether the Applicant had strong ties to Canada, or if Canada was the
place where he “regularly, normally or customarily” lived. The Respondent cites
Ma v. Canada (Minister of
Citizenship and Immigration) 2007 FC 587 at paragraph 15:
15 I do
not believe either that she attempted to apply the test set out in Re Koo, [1993] 1 F.C. 286 (T.D.), as she did not seek to
determine whether Canada was the place where the applicant regularly, normally
or customarily lived, or whether Canada was the place where he had centralized
his mode of existence.
[55]
The
Respondent states that the Judge relied on the strict approach, which she was
entitled to do, particularly since the Applicant confirmed the number of
absences he had from Canada. The Respondent cites Mizani at
paragraph 15:
15 In my view, it is clear
that the Citizenship Judge correctly applied the "physical" test: throughout
her reasons she makes consistently makes reference to the "1095 day"
threshold, and focuses her analysis on the applicant's physical presence in
Canada as supported by the evidence. I am not persuaded that she
blended this test with any other.
[56]
The
Respondent argues that the Judge had no duty to mention which test she was
applying since the test can be implicitly identified. Therefore, there is no
reviewable error on this point: Kwan v. Canada (Minister of
Citizenship and Immigration) 2001 FCT 738 (Kwan). The Respondent
relies on paragraph 17 of Wang v. Canada (Minister of
Citizenship and Immigration) 2008 FC 390:
17 Even
though the Judge acknowledges various positive, qualitative factors put forward
by the Applicant, there is no blending of the tests and I think she makes it
clear that, for her, the deciding factor is quantitative and this is the basis
of her decision under section 5(1)(c).
[57]
The
Respondent also cites Tulupnikov v. Canada (Minister of
Citizenship and Immigration) 2006 FC 1439 (Tulupnikov) at
paragraphs 17-18:
17 It was not in dispute
before the Court that, 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. Counsel for the Applicant here urged that the Judge erred in a manner
that would justify granting this appeal in failing to identify which of the
three tests he relied on and further, in "blending" the Pourghasemi
test with elements of the other two tests. Counsel urged that by citing a
strict count of days conclusion and then going on to refer at significant
length and in a critical manner to the Applicant's documentary evidence, the
Judge clearly engaged in a "blending" of tests.
18 I reach a different
conclusion. The Judge had clearly, by the close of his interview with the
Applicant, reached a conclusion that the Applicant could not succeed on the
basis of a strict count of days test. As earlier indicated in these reasons, he
invited the Applicant to submit documentation and advised the Applicant that,
if he did not do so, his application for Canadian citizenship must fail. The
Judge considered the documentation submitted and, as reflected in his decision
letter, clearly found it unsatisfactory to support a determination favourable
to the Applicant under either of the more flexible tests. Thus, and I regard
this to be apparent on the face of the decision letter, he reverted to the
"strict count of days" test to reject the Applicant's application. He
did not "blend" or confuse the tests. Further, I find no basis on
which to conclude that the Judge ignored any of the documentary evidence that
was before him.
[58]
Therefore,
the Respondent concludes that the Judge’s analysis is in harmony with the case
law. In any event, the analysis of the Applicant’s documents were not essential
to the decision in the Respondent’s view, as the Applicant had not been in
Canada for the required number of days and his application could have been
rejected without further commentary. See: Chen and Liu v. Canada (Minister of
Citizenship and Immigration) 2007 FC 501.
[59]
The
Respondent submits that the wording used by the Judge is quite similar to the
wording in the case of El Fihri v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1106 (El Fihri). It states
at paragraphs 8-9:
8 Even though the
applicant submits that the Judge did not apply any of the possible
interpretations, it is clear that the strict interpretation was used, i.e. the
requirement of physical presence in Canada which requires that 1095 days be accumulated
in the 1460 days preceding the date of the application:
[TRANSLATION]
Under paragraph 5(1)(c) of the Citizenship
Act, the would-be citizen must have within the four years immediately
preceding the date of his or her application, accumulated at least three years
of residence in Canada.
(Page 7 of the applicant's record -- Judge's
decision dated September 30, 2004, at paragraph 2)
The applicant, then 14, entered Canada and was
granted landed status on July 14, 1995. She applied for Canadian citizenship on
April 30, 2003.
This grants her 1460 material days in Canada. She
admits to being absent, or out of Canada, on 225 days. This would grant her 1235 days
of physical presence in Canada.
(Page 30 of the applicant's record - Written
notes of the Citizenship Judge at paragraphs 1 and 2)
9 It is therefore obvious
that the applicant had to provide her evidence to establish that she had been
in Canada for 1460 days before the date of her application, which
was April 30, 2003. The Judge therefore examined and questioned the applicant
regarding that period:
The applicant, though aged 14 when she arrived
in Canada, never attended high school or college here. Did she
return home to Morocco to continue her education in 1995? She claims
no.
Rather, she said she did not want to come to Canada and,
therefore, did nothing -- absolutely nothing -- until September 17, 2000 --
some five years and two months later. This placed her some 17 months into the
material time period.
Moreover, she has nothing to submit to show for
those five years and two months. No school, no work, no memberships in any
community, cultural or social associations, groups, clubs and organizations. No
letters from friends -- nothing. Absolutely nothing. And, all beginning at age
14.
It was only in the summer/fall of 2000 that the
applicant showed signs of Canadian life... .
The applicant has submitted evidence of
residence commencing September, 2000 -- not before. This is some 17 months into
her material time period. There is nothing before.
(Page 30 of the applicant's record -- Written
notes of the Citizenship Judge at paragraphs 3 to 6 and 9).
[60]
The
Respondent states that there is no error regarding the approach applied by the
Judge.
[61]
The
Respondent submits that the Judge is presumed to have considered all of the
evidence presented, therefore, the Judge did not have to mention every document
considered: Kwan at paragraph 26 and Rasaei v. Canada (Minister of
Citizenship and Immigration) 2004 FC 1688 at paragraph 15.
[62]
The
Respondent also states that according to the Act, the Judge had to study the
situation of the Applicant from within the four years immediately preceding the
date of his application. Therefore, the Judge did not have to consider the
evidence posterior to the application (ex. 2005 and 2006 tax income papers and
the Preschool report). The Respondent notes that the fact that the Applicant
has not left Canada since May
10, 2004 is completely irrelevant. The Judge made no error in considering only
the evidence regarding the relevant period of time and there was no duty to
advise the Applicant that additional or more complete evidence was required: Kwan
at paragraph 28 and Zheng v. Canada (Minister of
Citizenship and Immigration) 2007 FC 1311 at paragraph 14.
[63]
The
Respondent submits that the Applicant had the burden of establishing, on a
balance of probabilities, that he satisfied the residency requirement pursuant
to paragraph 5(1)(c) of the Act: Saqer v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1392 at paragraph 20. It was also
incumbent upon the Applicant to submit the necessary evidence in support of his
application: El Fihri at paragraphs 10-12 and Farrokhyar v. Canada (Minister of
Citizenship and Immigration) 2007 FC 697 at paragraphs 17-18.
[64]
The
Respondent submits that the analysis of the evidence filed by the Applicant
reveals that it is incomplete and insufficient. The documents provided by the
Applicant in support of his application do not demonstrate where he was
residing and for how long, whether he had worked since his arrival or whether
he had a meaningful income during the period of time under study.
[65]
The
Respondent states that the approach applied can be easily identified and the
analysis of the evidence provided is reasonable. As well, that the reasons are
intelligible and understandable. Citizenship judges are not to be held to a
standard of perfection: Tulupnikov at paragraphs 21-22.
[66]
The
Respondent submits that even if the reasons were ambiguous, it would not
justify granting the appeal, as per paragraphs 10-11 in Farshchi v. Canada (Minister of
Citizenship and Immigration) 2007 FC 487:
10 The decision of the
citizenship judge is not without ambiguity. Under the heading "Has the
applicant met the residency requirement of 1095 days in Canada?"
the following paragraph appears:
In his application for citizenship, Mr.
Farshchi stated that during the relevant four year period he was out of Canada 405 days,
leaving him with 1055 days in Canada. This is 40 days short of what is required by
the Citizenship Act. While I may consider this a minor shortage and
overlook the requirement of the Citizenship Act, I need to be convinced
that indeed Mr. Farshchi was in Canada 1055 days during the relevant period and
that he has demonstrated an ongoing presence in Canada.
11 If the citizenship
judge intended to use the physical presence test, which I believe she did, she
could have finished her analysis with the first two sentences of that
paragraph. But the last sentence is questionable. I am not aware of any clear
authority for declaring 40 days to be a "minor shortage" so that the
citizenship judge can "overlook the requirement of the Citizenship Act."
If one is applying the physical presence test of residence, it seems to me that
it requires such presence in Canada for a total of 1095 days. (Only the
"normally resident" interpretation of the "residence"
requirement in the Act permits actual presence in Canada for less
than the three years.) But even if I am right in this, and the citizenship
judge misstated the law and applied it thus, it could not have worked to the
disadvantage of the Applicant. If the citizenship judge concluded he was not
physically present for 1055 days, he could not have been found to be present
for 1095 days. A close reading of the decision makes it clear that, in
substance, the citizenship judge was not convinced beyond a reasonable doubt
that the Applicant had been physically present in Canada 1055 days
during the relevant period, as he asserted. Under the heading "Does the
applicant demonstrate an ongoing physical presence in Canada?"
[emphasis added] she noted that he had not produced the passport applicable
during part of the period in question She went on to say:
Without this missing passport Mr. Farshchi is
required to provide concrete substantial evidence of an ongoing physical
presence in Canada.
She proceeded to review the evidence as to
whether it showed a "continuing presence" or "continued
presence" in Canada. I am unable to say that her conclusion is
unreasonable. There were, in my view, good grounds for doubting the Applicant's
assertion that he had been in Canada virtually all of the time covered by his
first passport, a passport which he could not produce, whereas during the
relevant period covered by his current passport it showed he had been absent
from Canada 53% of the time. The citizenship judge was certainly entitled to
find the other evidence submitted to prove presence in Canada to be
inconclusive. I see no indication of her having applied an evidentiary burden
other than the balance of probabilities.
[67]
The
Respondent concludes that although the Applicant does not agree with the
Judge’s Decision, he failed to demonstrate any reviewable error that would have
been committed. The Applicant failed to demonstrate that he satisfied the
residency criteria provided in the Act and that the Judge erred in her
evaluation of the evidence. Therefore, the appeal should be dismissed.
[68]
The
Applicant requests the following:
a. Allow this
appeal;
b. Overturn the
decision of the Citizenship Judge rendered February 15, 2008;
c. Grant the
Applicant citizenship forthwith, or;
d. Order that
the case be reconsidered before a different Citizenship Judge with necessary
instructions and this within the earliest delays;
e. Render any
other order the Court sees fit;
f.
The
whole with or without costs, as the Court sees fit.
[69]
The
Respondent requests that this appeal be dismissed.
[70]
The
Applicant has contended that not only did the Judge err for not properly
identifying the proper test to decipher if the Applicant met the residency
requirements under 5(1)(c) of the Act, but she provided insufficient reasons
within her decision, and regardless of which residency test she applied, she
applied it incorrectly.
[71]
On
the first issue, I would agree with the Respondent that a citizenship judge is
entitled to choose which test they desire to use, whether it is a stricter
‘physical presence’ approach or a more liberal approach as discussed in Koo.
At first glance, due to the lack of analysis in the Judge’s reasons and extreme
focus on the shortage of 37 days, it could be gleaned that the Judge in fact
was applying the stricter ‘physical presence’ test. However, upon further
reflection, I would disagree with this assumption that the Respondent has tried
to propose for several reasons:
a. The Applicant
was open and honest about being short 37 days from the required amount, yet the
Judge requested additional documentation from the Applicant. If the Judge was
simply applying the stricter ‘physical presence’ approach all of the
information required would have been presented at the hearing, as it was known
that the Applicant was short 37 days and the reasons for his trips out of the
country which were beyond ‘short vacations’, educational endeavours or
business;
b. Even if the
Judge intended to apply the stricter ‘physical presence’ approach, by asking
for further documentation, it would appear that the Koo approach may
have been considered as further documentation could have aided in a successful
application under the Koo analysis including the fact that the Judge
erred in concluding that the Applicant failed to show evidence that he did, in
fact, work;
c. Even if the
Judge abandoned or was unsure of the approach she would use, the mixed messages
sent to the Applicant and the lack of guidance provided in the decision are
enough to convince me that there is no clear approach indicated through the
entire process that the Applicant went through, therefore, the Judge erred.
[72]
In
relation to the second issue, I agree with the Applicant that there was a lack
of reasons provided to the Applicant. The letter sent to the Applicant simply
states that he did not provide documentation that was “satisfactory proof of
residence in Canada” therefore
he did not meet the residency requirements. Even in the Judge’s notes, there is
no further guidance as to what exactly propelled the Judge to come to the decision
beyond the Applicant being short 37 days and the documentation not being enough
to convince the Judge. I find this a breach of procedural fairness.
[73]
Since
I have found in the Applicant’s favour on the first two issues, it is clear
that I must also rule in his favour on the third issue that the residency tests
were misapplied.
[74]
I
find this decision unfortunate, as it is clear that the Applicant is an ideal
candidate for ‘exceptional circumstances’ as outlined in section 5.9 B of the Citizenship and
Immigration Canada, Citizenship Policy Manual CP5: Residence
(citizenship policy manual).
[75]
This
application is a very clear instance of the lack of guidance facing citizenship
judges. Clarification and most importantly unification of one residency test
would help alleviate the issues on this application and would also take much of
the guesswork out of this Court’s job on judicial review. However, with the
case law as it is today, I find that this application should be granted.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application is granted and sent back for reconsideration by another citizenship
judge in accordance with these reasons.
"Max M. Teitelbaum"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-587-08
STYLE OF CAUSE: Shams
Riyad CHOWDHURY v. MCI
PLACE OF
HEARING: Montreal, Quebec
DATE OF
HEARING: June
19, 2009
REASONS FOR JUDGMENT
AND JUDGMENT: TEITELBAUM D.J.
DATED: July 9,
2009
APPEARANCES:
Ms. Cheryl Ann
Buckley
|
FOR THE APPLICANT
|
Mr. Alain
Langlois
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
Cheryl Ann
Buckley
Attorney
Montreal,
Quebec
|
FOR THE APPLICANT
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|