Date:
20111221
Docket:
T-871-11
Citation: 2011 FC 1509
Ottawa, Ontario, December 21, 2011
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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MARGARITA BALTA
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Applicant
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and
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MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant is a citizen of Russia but has spent most of her life in Germany. She entered Canada on October 22, 2003, and on April 4, 2007, she submitted an
application for Canadian citizenship. During the four years that preceded the
date of her application for citizenship, the applicant was physically present in
Canada for 897 days. Most of her absences from Canada were due to visits to Germany to take care of her mother who was ill; her other absences were related to business
trips and vacation (44 days).
[2]
On
March 28, 2011, Citizenship Judge Renée Giroux refused to grant the applicant
citizenship. The Citizenship Judge chose to assess the applicant’s residency in
Canada using a test commonly referred to as the “physical presence test” and,
as such, concluded that the applicant had not met the residency requirement set
out in paragraph 5(1)c) of the Citizenship Act, RCS 1985, c C‑29
[the Citizenship Act]. This is an appeal of the latter’s decision. She is
self-represented in these proceedings.
I. The Decision under Review
[3]
The
Citizenship Judge determined that the applicant had not met the residency
requirement set out in paragraph 5(1)c) of the Citizenship Act because
the applicant was 200 days short of being physically present in Canada for 1095 days during the four years prior to submitting her citizenship application.
The Citizenship Judge acknowledged that the applicant had spent 319 days
outside of Canada during the reference period to care for her sick mother. However,
the Citizenship Judge explained that she adopted the physical presence test and,
accordingly, the applicant did not meet the residency requirement. In her decision,
the Citizenship Judge clearly referred to the residency test established in Pourghasemi
(Re) (1993), 62 FTR 122, 39 ACWS (3d) 251 (TD) [Pourghasemi].
II. Issues
[4]
The
present appeal raises the following two issues:
i. Did
the Citizenship Judge err in applying the physical presence test rather than
any other residency test?
ii. Did
the Citizenship Judge’s conduct give rise to a reasonable apprehension of bias?
III. Standard of Review
[5]
It
is well established that a Citizenship Judge’s determination as to whether a
person meets the residency requirement in the Citizenship Act is a question of
mixed fact and law which is reviewable under the reasonableness standard (see for example:
El-Khader v
Canada (Minister of Citizenship and Immigration), 2011 FC 328 at paras 8-10
(available on CanLII) [El-Khader]; Raad v Canada (Minister of
Citizenship and Immigration), 2011 FC 256 at paras 20-22, 97 Imm LR (3d)
115; Chaudhry v Canada (Minister of Citizenship and Immigration), 2011
FC 179 paras 18-20, 384 FTR 117; Hao v Canada (Minister of Citizenship and
Immigration), 2011 FC 46 at paras 11-12, 383 FTR 125 [Hao]; Cardin
v Canada (Minister of Citizenship and Immigration), 2011 FC 29 at para 6,
382 FTR 164 [Cardin]; Deshwal v Canada (Minister of Citizenship and
Immigration), 2011 FC 1248 at paras 10-11 (available on CanLII); Chowdhury
v Canada (Minister of Citizenship and Immigration), 2009 FC 709 at para 30,
347 FTR 76; Pourzand v Canada (Minister of Citizenship and Immigration),
2008 FC 395 at para 19, 166 ACWS (3d) 222; Canada (Minister of Citizenship
and Immigration) v Takla, 2009 FC 1120 at para 23, 359 FTR 248 [Takla]).
[6]
It is also
well established that questions of procedural fairness, in this case, bias, are
reviewable
under the
correctness standard (Dunsmuir v New Brunswick, 2008 SCC 9 at para 60,
[2008] 1 S.C.R. 190 [Dunsmuir]; Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43, [2009] SCR 339).
IV. Analysis
[7]
This
case is an unfortunate outcome of the current state of citizenship law. The
applicant is well established in Canada. She fell short of meeting the
residency requirement during the reference period because she spent some time
in Germany due to compelling humanitarian reasons that were beyond her control;
her mother was ill and in need of the applicant’s help and support. She
otherwise demonstrated a strong commitment to becoming Canadian.
A. Did the
Citizenship judge err in applying the physical presence test rather than any
other residency test?
[8]
The
applicant argued that it is both unreasonable and unfair that Citizenship Judges
are allowed to choose from among different tests to determine if a person meets
the residency requirement set forth in the Citizenship Act. She found it unjust
that the outcome of one’s application depends on which Citizenship Judge is
assigned to one’s file. The applicant also argued that, in her case, it was
unfair for the Citizenship Judge to ignore the humanitarian and personal
circumstances that led her to spend time outside Canada and to choose, despite
those compelling circumstances, to apply the strict physical presence test. She
added that it was not clear from the Citizenship and Immigration Canada website
that the physical presence in Canada was mandatory for the entire 1095 days in
order to obtain citizenship.
[9]
Although
I have utmost sympathy for the applicant and understand her frustration and incredulity,
I am of the view that the current state of the law allows Citizenship Judges to
choose from among the three recognized tests for assessing the residency
requirement under the Citizenship Act. The notion of residence under paragraph
5(1)c) of the Citizenship Act is not defined and Citizenship Judges do
not apply a uniform interpretation of residence. Some judges apply the strict
physical presence test which was recognized as a valid interpretation of paragraph
5(1)c) of the Citizenship Act in Pourghasemi, above, at para 6, whereas
other judges may apply a more flexible qualitative analysis such as those
endorsed in Papadogiorgakis (Re) (1978), [1978] 2 CF 208 at paras 15-16,
88 DLR (3d) 243 (TD) and in Koo (Re) (1992), [1993] 1 FC 286 at para 10,
59 FTR 27 (TD) [Koo].
[10]
It
is important to note that the Federal Court’s role is not to substitute its own
assessment of the evidence with the one undertaken by the Citizenship Judge. This
Court may only intervene when a Citizenship Judge’s decision is unreasonable,
meaning when the decision falls outside the range of possible, acceptable
outcomes which are defensible in respect of the facts and the law (Dunsmuir,
above, at para 47). In Dunsmuir, at para 47, the Court held that
tribunals should “have a margin of appreciation within the range of acceptable
and rational solutions.” Over the years, the Federal Court has endorsed the
different approaches espoused by the Citizenship Judges and has recognized that
each of them were reasonable interpretations of the Citizenship Act. This
Court’s jurisprudence has also recognized that Citizenship Judges are allowed
to choose from among the accepted tests. As long as they apply the chosen test
in a reasonable manner, the Court ought not to intervene (Lam v Canada (Minister
of Citizenship and Immigration) (1999), 164 FTR 177 at para 14, 87 ACWS
(3d) 432 (TD)).
[11]
Despite
an attempt by Justice Mainville in Takla, above, to unify the
approaches by recognizing the test enunciated in Koo, above, as the only
acceptable test, a number of judges of this Court (Hao, above, at paras 46-47; El-Khader,
above, at para 18; Alinaghizadeh v Canada (Minister of Citizenship and
Immigration), 2011 FC 332 at paras 28, 30 (available on CanLII); Abbas v
Canada (Minister of Citizenship and Immigration), 2011 FC 145 at para 7
(available on CanLII); Cardin, above, at para 12; Murphy v Canada (Minister
of Citizenship and Immigration), 2011 CF 482 at para 6, 98 Imm LR (3d) 243);
Martinez-Caro v Canada (Minister of Citizenship and Immigration), 2011
CF 640 at para 20-21, 98 Imm LR (3d) 288), including myself, are of the view
that absent a legislative intervention, the three tests remain reasonable
interpretations of the residency requirement under the Citizenship Act. In my
humble view, the physical presence test is a reasonable interpretation of the
residency requirement on a plain reading of the statute. I find that the
reasoning of Justice Snider in El-Khader, above, is particularly
compelling:
[17] Following
Takla, a number of Federal Court judges have endorsed Justice
Mainville’s adoption of the Re Koo test as the only analysis that should
be applied pursuant to s. 5(1)(c) of the
Citizenship
Act (see, for example, Canada (Minister of Citizenship &
Immigration) v Salim, 2010 FC 975, 92 Imm. LR (3d) 196; Canada (Minister of Citizenship & Immigration) v Alonso Cobos,
2010 FC 903,
92 Imm LR (3d) 61; Canada (Ministre de la Citoyenneté & de
l'Immigration) c Abou-Zahra, 2010 FC 1073, [2010] FCJ No 1326 (QL); Canada
(Minister of Citizenship & Immigration)v Elzubair, 2010 FC 298, [2010]
FCJ No 330 (QL); Khan v Canada (Minister of Citizenship & Immigration),
2011 FC 1178).
[18] However,
since that decision was released, a second line of equally compelling jurisprudence
has emerged (see, for example, Abbas, above; Sarvarian v Canada (Minister of Citizenship and Immigration), 2010 FC 1117, [2010] FCJ No 1433
(QL)). The judges in these cases have continued to accept either the
qualitative or quantitative interpretation of s. 5(1)(c) as reasonable.
[19] The
rationale behind this second line of jurisprudence is underscored by the
Supreme Court of Canada’s remarks in Celgene, above, and Alliance
Pipeline, above. In both of these cases, the Supreme Court reinforced the
principle that, the standard of reasonableness, even prior to Dunsmuir,
has always been “based on the idea that there might be multiple valid
interpretations of a
statutory
provision or answers to a legal dispute” such that “courts ought not to
interfere where the tribunal’s decision is rationally supported” (Dunsmuir,
at para 41; Alliance Pipeline, at paras 38-39).
[20] The
Applicant rests his case on an assertion that the Citizenship Judge erred in
law by not following the test articulated in Takla, above. This argument
can only be correct if the decision in Takla overruled the decision in Lam.
In my view, the conclusion of a judge of the Federal Court in Takla did
not and could not overrule the conclusion of a judge of the Federal Court in Lam.
As a consequence, the law remains that, provided a citizenship judge correctly
adopts and applies either test, the decision ought to stand.
[21] This
conclusion is supported by the very words of Justice Mainville who
acknowledges, at paragraph 47 of Takla, that “the test of physical
presence for three years . . . is consistent with the
wording of the
Act”. The physical presence test provides a reasonable interpretation of the
words “resident” and “residence” in the legislative provision. In other words,
the decision by a citizenship judge to interpret s. 5(1)(c) of the Citizenship
Act to require physical presence is rationally supported by the words of
the statute and by a lengthy line of jurisprudence from this Court. The Citizenship
Judge did not err as alleged by the Applicant.
[12]
I
also endorse Justice Mosley’s comments in Hao, above, at paragraphs 49
and 50:
[49] In
the interest of judicial comity, I have considered whether I should follow the
analysis of my colleagues who favour the Koo test. The principle of
judicial comity recognizes that decision of the Court should be consistent so
as to provide litigants with a certain degree of predictability: Abbott
Laboratories v Canada (Minister of Health), 2006 FC 120, reversed on appeal
on other grounds: 2007 FCA 73, 361 N.R.90. I note that Justice Barnes in
Ghaedi, declined to apply the principle in this context, albeit in
reference to the Lime line of authority.
[50] I
agree that it would be preferable to have consistency in the test applied to
determine residency but several judges of this Court, including myself, have
found the physical presence interpretation is appropriate on a plain reading of
the statute. And this Court, for over 11 years, has deferred to decisions by
Citizenship judges to choose that interpretation over the alternative as a
reasonable exercise of their discretion. While inconsistent application of the
law in unfortunate, it can not be said that every example of inconsistency in
this context is unreasonable. If the situation is “scandalous” as Justice Muldoon
suggested many years ago in Harry, it remains for Parliament to correct the
problem.
[13]
I,
therefore, conclude that the Citizenship Judge neither erred by choosing to
apply the physical presence test nor did she err in the way that the test was
applied.
[14]
In
her Memorandum, the applicant argued that the Citizenship Judge should have
counted her days of presence in Canada between the submission of her citizenship
application and the date at which her application was adjudicated. The
requirements for establishing residency must be fulfilled on the date that the
Citizenship application is submitted. This is clear from the wording of
paragraph 5(1)c) of the Citizenship Act:
5.
(1) The Minister shall grant citizenship to any person who
…
(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;
…
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5. (1) Le ministre attribue la
citoyenneté à toute personne qui, à la fois :
[…]
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;
[…]
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[Emphasis
added]
B.
Did the Citizenship Judge’s conduct give rise to a reasonable apprehension
of bias?
[15]
The
applicant argued that the Citizenship judge was rude and hostile to her during
the hearing and that, by discounting her personal circumstances and by choosing
to apply the physical presence test, the Citizenship Judge showed bias against the
applicant.
[16]
The
test for a reasonable apprehension of bias was enunciated in Committee for
Justice and Liberty v Canada (National Energy Board), [1978] 1 S.C.R. 369 at
394 (available on CanLII):
. . . the apprehension of bias
must be a reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information…
[The] test is “what would an informed person, viewing the matter realistically
and practically – and having thought the matter through – conclude. Would he
think that it is more likely than not that [the decision maker], whether
consciously or unconsciously, would not decide fairly.
[17]
In
R v S (RD), [1997] 3 S.C.R. 484, 151 DLR (4th) 193, the Supreme Court
reiterated the test and stated the following, at paragraph 36, with respect to
the objective aspect of the test:
[36] The presence or absence of an apprehension
of bias is evaluated through the eyes of the reasonable, informed, practical
and realistic person who considers the matter in some detail (Committee for
Justice and Liberty, supra.) The person postulated is not a "very
sensitive or scrupulous" person, but rather a right-minded person familiar
with the circumstances of the case.
[18]
The
burden of demonstrating a reasonable apprehension of bias lies on the person
raising the issue (Fletcher v Canada (Minister of Citizenship and
Immigration), 2008 FC 909 at para 8, 74 Imm LR (3d) 778). While
actual bias need not be proven, the test is an objective one and, as
stated by the Court in Armstrong v Canada (Attorney General), 2006 FC
505 at para 74, 291 FTR 49, “[t]he threshold for establishing a claim is high
and substantial grounds are necessary to support a claim.”
[19]
In
this case, the applicant failed to demonstrate that the Citizenship Judge did
not approach the case with an “open mind” or that she had, prior to the
citizenship hearing, already formed an opinion that she would not consider
changing after allowing the applicant the opportunity to respond. With respect
to the applicant, the perception of rude or hostile behaviour does not meet the
threshold for a reasonable apprehension of bias, without any further evidence
to substantiate the claim. As mentioned earlier, the Citizenship Judge did not
err by adopting the physical presence test in her interpretation of the
residency requirement. Moreover, nothing leads me to conclude that she chose
that interpretation specifically as a means to dismiss the applicant’s
application. I do not find that the Citizenship Judge violated a principle of
natural justice or procedural fairness.
[20]
The
Citizenship Judge found, and I agree, that the applicant possessed all of the
qualities desirable in new Canadian citizens and was sure to be successful in
her application once she met the residency requirements. I encourage the
applicant to do so.
JUDGMENT
THIS
COURT’S JUDGMENT is that the appeal
is dismissed.
“Marie-Josée
Bédard”