Date: 20091026
Docket: T-1527-08
T-1528-08
Citation: 2009 FC 1080
Ottawa, Ontario, October 26, 2009
PRESENT: The Honourable Mr. Justice Near
Docket: T-1527-08
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Applicant
and
SIDRAT
FAROOQ
Respondent
Docket: T-1528-08
AND BETWEEN:
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Applicant
and
IMRAN FAROOQ
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an appeal brought under subsection 14(5) of the Citizenship Act,
R.S.C. 1985, c. C 29 (the Act) appealing the decision (the Decision)
of a Citizenship Judge dated August 5, 2008, approving the Respondents
application for Canadian citizenship.
[2]
It
is the Applicant’s position that the Respondents did not meet the residence
requirements set out under subparagraph 5(1)(c) of the Act during the relevant
time and that the Citizenship Judge erred in determining that the Respondents
satisfied these residence requirements and erred in law by approving the
Respondent’s application for citizenship.
[3]
The
Respondents did not appear at the hearing of this matter.
[4]
For
the reasons set out below the appeals in T-1527-08 and T-1528-08 are allowed,
the decisions of the Citizenship Judge are set aside and the matters are sent
back for re-determination by a different Citizenship Judge.
I. Background
[5]
The
Respondents are 35-year-old citizens of Pakistan and a
married couple. Both Respondents landed in Canada on July 14,
2002 with their one year old child. The child returned to Pakistan three months
after their arrival. Both Respondents applied for Citizenship on February 20, 2006,
while in Pakistan. They did
not submit an application on behalf of the child. Both Respondents received a
positive decision on August 5, 2008.
[6]
The
Applicant appealed both decisions, which were made by the same Citizenship
Judge. The wife, Ms. Sidrat Farooq, is the Respondent in Court File No.
T-1527-08 and the husband, Mr. Imran Farooq, is the Respondent in Court
File No. T-1528-08. The two appeals were heard concurrently.
[7]
The
Respondents indicated on each of their residency questionnaires that during the
relevant time period they were absent from Canada on only two
occasions: a trip to New York to visit a brother in 2002 and a trip to Pakistan in January
2002, for a total absence from Canada of 39 days during the relevant period. They
submitted various documents such as tenancy agreements, financial and income
statements and evidence of Mr. Farooq’s immigration consulting business in
support of their citizenship applications. I note that Ms. Farooq’s application
stated she did not work.
[8]
Prior
to the Decision the Citizenship Judge received a file review from a Citizenship
and Immigration Canada (CIC) Officer. The file review noted specific issues
that raised questions with regard to the Respondents applications, notably that
if the Respondents information was accepted as stated they had only seen their
daughter once in approximately four years. The file review also noted that the
activity in their bank accounts was minimal, their Notices of Assessment
indicated minimal income, and that the phone number listed was actually
registered to their landlady.
[9]
The
Citizenship Judge completed the appropriate form required for each of the two
applicants. He checked the box indicting that the Respondents had complied with
paragraph 5(1)(c) and under the “Reasons” section wrote:
I am satisfied the applicant meets the
requirement of residence according to 5(1)(c) of the Act.
[10]
The
same wording was used to support the decision in both citizenship applications.
II. Standard
of Review
[11]
The
applicable standard of review regarding a Citizenship Judge’s determination of
whether the Citizenship Applicant met the residency requirement is
reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190; Pourzand v. Canada (Minister of Citizenship
and Immigration), 2008 FC 395, 71 Imm. L.R. (3d) 289 per Justice James
Russell at paragraph 19).
[12]
Procedural
fairness questions and the adequacy of reasons are pure questions of law reviewable
on a correctness standard (Pourzand, above, at paragraph 21).
III. Issues
A.
The
Residency Test
[13]
Section
5(1) of the Act sets out the necessary criteria for obtaining citizenship.
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5.
(1) The Minister shall grant citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(c) is a permanent resident
within the meaning of subsection 2(1) of the Immigration and Refugee
Protection Act, and has, within the four years immediately preceding the date
of his or her application, accumulated at least three years of residence in
Canada calculated in the following manner:
(i) for every day during which the
person was resident in Canada before his lawful admission to Canada for
permanent residence the person shall be deemed to have accumulated one-half
of a day of residence, and
(ii) for every day during which the
person was resident in Canada after his lawful admission to Canada for
permanent residence the person shall be deemed to have accumulated one day of
residence;
[Emphasis added]
(d) has an adequate knowledge of one of
the official languages of Canada;
(e) has an adequate knowledge of Canada and of the responsibilities
and privileges of citizenship; and
(f) is not under a removal order and is
not the subject of a declaration by the Governor in Council made pursuant to
section 20.
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5.
(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois:
a) en fait la demande;
b) est âgée d’au moins dix-huit ans;
c) est un résident permanent au sens du
paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés et
a, dans les quatre ans qui ont précédé la date de sa demande, résidé au
Canada pendant au moins trois ans en tout, la durée de sa résidence étant
calculée de la manière suivante :
(i) un demi-jour pour chaque jour de
résidence au Canada avant son admission à titre de résident permanent,
(ii) un jour pour chaque jour de
résidence au Canada après son admission à titre de résident permanent;
[Je souligne]
d) a une connaissance suffisante de
l’une des langues officielles du Canada;
e) a une connaissance suffisante du
Canada et des responsabilités et avantages conférés par la citoyenneté;
f) n’est pas sous le coup d’une mesure
de renvoi et n’est pas visée par une déclaration du gouverneur en conseil
faite en application de l’article 20.
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[14]
The
Act does not define "residency". As outlined by Justice Danièle
Tremblay-Lamer in Mizani v. Canada (Minister of Citizenship
and Immigration), 2007 FC 698, [2007] F.C.J. No. 947 at paragraph 10,
the 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), 62 F.T.R. 122,19 Imm. L.R. (2d) 259 (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.), 88 D.L.R. (3d) 243). 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.), 19 Imm. L.R. (2d) 1 at paragraph 10).
[15]
While
a Citizenship Judge must rely on any one of the three tests, it is not open to
him or her to "blend" the tests (Mizani, above,
paragraphs 12-13). The onus is on the citizenship applicant to provide
sufficient objective evidence to demonstrate they have met the residency
requirements (Mizani, above, at paragraph 19 per Justice Tremblay-Lamer,
see also Canada (Minister of Citizenship and Immigration) v. Italia,
[1999] F.C.J. No. 876, 89 A.C.W.S. (3d) 22 at paragraph 14).
[16]
In
this case the Citizenship Judge did not identify in the reasons which test was
used to determine that the Respondents met the requirements of section 5(1)(c).
I agree with the Applicant that this was an error.
a.
The
Reasons Provided
[17]
Section
14(2) of the Act requires that the Minister be provided with notice and reasons
of the Citizenship Judge’s decision. Section 14(2):
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(2)
Forthwith after making a determination under subsection (1) in respect of an
application referred to therein but subject to section 15, the citizenship
judge shall approve or not approve the application in accordance with his
determination, notify the Minister accordingly and provide the Minister with
the reasons therefor.
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(2)
Aussitôt après avoir statué sur la demande visée au paragraphe (1), le juge
de la citoyenneté, sous réserve de l’article 15, approuve ou rejette la
demande selon qu’il conclut ou non à la conformité de celle-ci et transmet sa
décision motivée au ministre.
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[18]
According
to Justice Edmond Blanchard in Canada (Minister of Citizenship
and Immigration) v. Li, 2008 FC 275, 71 Imm. L.R. (3d) 152, the
reasons must be sufficient to enable the appeal court to discharge its
appellate function, indicate the residency test used and explain why she/he
determined that the residency requirements in section 5 of the Act had been met
(at paragraph 5). It is a reviewable error to fail to provide sufficient
reasons (at paragraph 6). Justice Blanchard did discuss the importance of
addressing concerns raised by the CIC Officer at paragraph 6:
In my view, the Citizenship Judge
committed a reviewable error by not providing reasons for having approved the
Respondent's application to the Minister. In the circumstances of this case,
and given the concerns raised by the Citizenship Officer who conducted the
interview of the Respondent, reasons should have been provided describing the
documents submitted by the Respondent and their impact on the Decision. The
reasons should have also indicated the residency test the Judge used and
explained why he determined that the residency requirements in section 5 of the
Act had been met.
[19]
I
am also instructed by the recent decision by Justice Roger Hughes in Canada (Minister of
Citizenship and Immigration) v. Mahmoud, 2009 FC 57, 78 Imm.
L.R. (3d) 254, who commented extensively on the importance of the Citizenship
Judge’s reasons:
[4] A citizenship judge is not a
"judge" as it may be understood in the sense of a superior Court or
provincial Court judge. Section 26 of the Citizenship Act states that any
"citizen" may be a citizenship judge, no legal training or other
qualifications are apparently necessary. The power of a citizenship judge, as
set out in the Act and amplified by the Regulations, is found in section 14(2)
of the Act which is captioned "Advice to Minister" and is to approve
or not approve the application but with an important addendum "...and
provide the Minister with the reasons therefor":
Advice to Minister
(2) Forthwith after making a determination
under subsection (1) in respect of an application referred to therein but
subject to section 15, the citizenship judge shall approve or not approve the
application in accordance with his determination, notify the Minister
accordingly and provide the Minister with the reasons therefor.
[5] This "advice" takes
the form of "approval" or "not" together with reasons
therefor. The only remedy thereafter as provided by the Citizenship Act is for
an appeal to this Court by either the Minister or
the applicant under section
14(5) of the Act. The decision of this Court as provided by section 14(6) is
final:
Appeal
(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.
Decision final
(6) A decision of the Court pursuant to
an appeal made under subsection (5) is, subject to section 20, final and,
notwithstanding any other Act of Parliament, no appeal lies therefrom.
[6] Thus, unless there is an
appeal, the approval or refusal by a citizenship judge, is a final matter as to
the applicant's Canadian citizenship. The Minister has no further function to
perform or other remedy other than an appeal. Therefore 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.
[20]
I
note that in Canada (Minister of Citizenship and Immigration)
v. Chan
(2000), 183 F.T.R. 152, 95 A.C.W.S. (3d) 617 (T.D.) the Citizenship Judge found
that the residence requirement was met by the citizenship applicant
establishing a centralized mode of living in Canada. On appeal
Justice Eleanor Dawson held that no reasons were given for this conclusion and
it was not palpably supported by the written record before the Citizenship
Judge (see paragraph 11). Justice Dawson allowed the appeal based on the
evidence contained in the written record before the Citizenship Judge, the fact
that it was not addressed in the reasons and the lack of evidence as to
anything else that was put before the Citizenship Judge.
[21]
In
this case the file before the Citizenship Judge included notes from the CIC Officer
indicating areas of concern related to the Respondents citizenship application.
These areas of concern included the fact that if considered as submitted, the
Respondents had not seen their only child for approximately four years, and
that they had minimal banking activity and income in Canada.
[22]
In
light of these concerns, the Citizenship Judge was required to address these
points in the reasons to indicate the issues raised and how the evidence related
to them was considered. The reasons were silent and inadequate and therefore
constitute a failure to comply with the statutory requirement to give reasons. This
was an error.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
the
appeals in both T-1527-08 and T-1528-08 are allowed;
2.
the
decisions of the Citizenship Judge in T-1527-08 and T-1528-08 are set aside and
the matters are sent back for re-determination by a different Citizenship
Judge; and
3.
there
is no Order as to costs.
“ D.
G. Near ”
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