Date: 20091102
Docket: T‑662‑09
Citation: 2009 FC 1120
Ottawa, Ontario, November 2, 2009
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
THE MINISTER
OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
ELIE SAMIH TAKLA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an appeal by the Minister of Citizenship and Immigration
(the Minister) under subsection 14(5) of the Citizenship Act and
related statutory and regulatory provisions, from a decision by a citizenship
judge granting Canadian citizenship to the respondent.
Facts and decision under appeal
[2]
The facts relevant to the appeal are not in dispute.
[3]
The respondent, Mr. Elie Samih Takla, is a
citizen of Lebanon. He is an engineer and works
in a specialized field related to the petroleum industry. He and his family
became permanent residents of Canada on April 21, 2002, and they
arrived in Canada to reside here on
August 16, 2003.
[4]
The respondent’s wife and children are all Canadian
citizens since they successfully met all the requirements of the Act in this
respect, including the requirements concerning the period of residence in Canada.
[5]
However, when the respondent submitted his application for
citizenship on September 26, 2006, he stated that he had been
physically present in Canada for only 597 days in the four years immediately preceding his
application.
[6]
His application was therefore referred to a citizenship
judge and, in a decision dated February 26, 2009, the respondent’s
application for citizenship was approved. The citizenship judge took into
account the six criteria outlined in Koo (Re), [1993] 1 F.C. 286,
59 F.T.R. 27 (F.C.T.D.).
[7]
The citizenship judge found that almost all the respondent’s
absences were related to his work as a specialized engineer. The respondent’s
specialized work required numerous trips abroad to serve his employer’s
clients. His trips led him to spend long periods of time in various countries,
including France, the United Arab Emirates,
Iran, Lebanon, Tunisia, Algeria, Great Britain, Russia, Spain and Norway. The respondent’s trips were mainly in North Africa
and France since his employer’s head office is in Algiers.
[8]
The citizenship judge found that the respondent has only
one permanent residence, which is situated in Canada, where his wife and children live and to which he returns at the end of
each of his numerous business trips. The respondent’s residence in Canada is a house that he owns; he has also acquired other buildings
in Canada as investments. His wife
works in Canada and his children go to
school here. The respondent pays his taxes in Canada on his world‑wide income.
[9]
The citizenship judge therefore concluded as follows: “On
balance, the quality of the applicant’s connection to Canada is higher than to any other country. Canada has become the applicant’s home. Indeed the applicant is what Canada is all about. As such, the applicant, according to the
jurisprudence settled by Madame Justice Reed in Re Koo, has met the
residence requirements of s. 5(1)(c) of the Act.”
Positions of parties
[10]
The Minister challenges the citizenship judge’s decision on
the grounds that he erred by finding that the respondent satisfied the
residence requirement under the Act, and that he misapplied the approach in
this regard that the Federal Court established in Koo, above. The
Minister also criticizes the judge for failing to give sufficient reasons for
his decision. In the Minister’s opinion, the decision by the citizenship judge in
this case is unreasonable.
[11]
Counsel for the Minister notes that the respondent has not
even accumulated 730 days of physical presence in Canada during the five
years immediately preceding the application for citizenship, and thus, in this
case, even the requirements of physical presence in Canada under subsections 28(1)
and (2) of the Immigration and Refugee Protection Act, reproduced in the
appendix, have not been met. Counsel for the Minister contends that the
interpretation of the provisions of the Immigration and Refugee Protection
Act must be consistent with the interpretation of the provisions relating
to the acquisition of citizenship in the Citizenship Act.
[12]
The respondent, who is representing himself, maintains that
he is well established in Canada with his family but that his professional obligations require him to
travel constantly outside the country to support himself and his family.
[13]
The respondent does not foresee that he will be physically
present in Canada three years out of four in
the foreseeable future but says that he is able to meet the criterion of two
years of physical presence out of five years under the Immigration and
Refugee Protection Act to maintain his permanent resident status.
[14]
The respondent nonetheless wishes to acquire Canadian citizenship,
and he maintains that the citizenship judge’s decision should be upheld given
that he is established in Canada and is not as consistently physically present in
any other country as he is in Canada.
Relevant statutory provisions
[15]
The relevant statutory provisions are the definition of the
word “Court” in subsection 2(1) of the Citizenship Act, as
well as subsection 5(1), paragraph 14(1)(a), subsections 14(2),
(5) and (6), section 16 and subsection 26(1) of the Act,
sections 18.5 and 21 of the Federal Courts Act, paragraph 300(c)
of the Federal Courts Rules and subsections 28(1) and (2) of
the Immigration and Refugee Protection Act. These provisions are
reproduced in the appendix.
Appropriate
standard of review – Introduction
[16]
Relying on certain Federal Court decisions, counsel for the
Minister suggests that the appropriate standard of review on this appeal from a
decision of a citizenship judge is reasonableness.
[17]
This approach calls for a number of clarifications and
comments because of the particular nature of this appeal.
[18]
Subsection 14(5) of the Citizenship Act,
reproduced in the appendix, explicitly provides that a decision of a citizenship
judge may be appealed to the Federal Court. Section 21 of the Federal
Courts Act also provides for this. Section 18.5 of the Federal
Courts Act explicitly provides that a decision that can be appealed under a
federal act is not subject to judicial review by the Federal Court.
Moreover, section 16 of the Citizenship Act states that the
Federal Court of Appeal does not have jurisdiction to hear and determine
an application for judicial review in such cases.
[19]
Parliament therefore clearly and explicitly provided for an
appeal and not for a judicial review: see the Federal Court decisions in Lam v.
Canada (Minister of Citizenship and Immigration), 164 F.T.R. 177,
[1999] F.C.J. No. 410 (QL), at paragraph 9; Canada
(Minister of Citizenship and Immigration) v. Chiu, [1999] F.C.J. No. 896
(QL), at paragraph 8; Canada (Minister of Citizenship and Immigration) v. Sun,
191 F.T.R. 62, [2000] F.C.J. No. 812 (QL), at
paragraph 2; and Zhao v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1536, [2006] F.C.J. No. 1923 (QL),
at paragraph 38.
[20]
Nevertheless, the appropriate standard of review on an
appeal from a decision by an administrative tribunal is not always easy to
determine. In the legal context arising from the decision in Dunsmuir v.
New Brunswick,
[2008] 1 S.C.R. 190, it is appropriate to re‑evaluate the standard
of review to be applied on an appeal from a decision by a citizenship judge under
subsection 14(5) of the Citizenship Act.
[21]
Prior to Dunsmuir, above, a clear majority of the
Federal Court’s jurisprudence held that the appropriate standard of review on
an appeal on the issue of whether an applicant has met the residence
requirement was reasonableness simpliciter: Zhao v.
Canada (Minister of Citizenship and Immigration), above; Chen v. Canada (Minister of Citizenship and Immigration), 2006 FC 85, at
paragraph 6; Rizvi v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1641, at paragraph 5;
Eltom v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1555, [2005] F.C.J. No. 1979
(QL), at paragraph 14; Wang v. Canada (Minister
of Citizenship and Immigration), 2005 FC 981, [2005] F.C.J. No. 1204
(QL); Morales v. Canada (Minister of Citizenship and
Immigration), 2005 FC 778, [2005] F.C.J. No. 982
(QL), at paragraph 6; Xu v. Canada (Minister of
Citizenship and Immigration), 2005 FC 700, at paragraph 13;
Zeng v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1752, [2004] F.C.J. No. 2134
(QL); Gunnarsson v. Canada (Minister of Citizenship
and Immigration), 2004 FC 1594, [2004] F.C.J. No. 1915 (QL),
at paragraphs 19 to 21; Canada (Minister of
Citizenship and Immigration) v. Fu, 2004 FC 60, at
paragraph 7; and Canada (Minister of Citizenship and
Immigration) v. Chang, 2003 FC 1472.
[22]
The standard of review that the Federal Court generally
applies on appeals from decisions by citizenship judges was often closer to the
“palpable and overriding error” standard that characterizes appeals on
questions of fact. As Mr. Justice Lutfy (now Chief Justice)
correctly pointed out in Lam, above, at paragraph 33:
Justice and fairness, both
for the citizenship applicants and the Minister, require some continuity with
respect to the standard of review while the current Act is still in force and
despite the end of the de novo trials. The appropriate standard, in
these circumstances, is one close to the correctness end of the spectrum.
However, where citizenship judges, in clear reasons which demonstrate an
understanding of the case law, properly decide that the facts satisfy their
view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not
to substitute arbitrarily their different opinion of the residency requirement.
It is to this extent that some deference is owed to the special knowledge and
experience of the citizenship judge during this period of transition.
[23]
Since the Dunsmuir decision, above, Federal Court
decisions have, for the most part, favoured the reasonableness standard of
review on an appeal from a decision of a citizenship judge under subsection 14(5)
of the Citizenship Act: Canada (Minister of Citizenship and Immigration) v. Tarfi, 2009 FC 188,
[2009] F.C.J. No. 244 (QL), at paragraph 8; Canada (Minister
of Citizenship and Immigration) v. Zhou, 2008 FC 939, [2008] F.C.J. No. 1170 (QL), at
paragraph 7; and Zhang v. Canada (Minister of Citizenship and
Immigration), 2008 FC 483, 67 A.C.W.S. (3d) 38,
at paragraph 8.
[24]
Although I am also of the view that the reasonableness
standard of review applies in this case in accordance with the
Supreme Court of Canada’s teachings in Dunsmuir, this
standard is not uniform and it varies in accordance with the analysis that the
Court must carry out pursuant to that decision. For the reasons set out in the
analysis which follows, I am of the view that the reasonableness standard of
review calls for qualified deference here where the Court is hearing an appeal
from a decision of a citizenship judge under subsection 14(5) of the Citizenship Act.
Appropriate
standard of review‑Analysis
[25]
Before Dunsmuir, almost all Federal Court decisions
applied the reasonableness simpliciter standard of review to appeals
from decisions by citizenship judges under subsection 14(5) of the Citizenship Act.
The reasonableness simpliciter standard was based on the principles set
out by the Supreme Court of Canada in a series of decisions, inter alia:
Bell Canada v. Canada (CRTC), [1989] 1 S.C.R. 1722;
Pezim v. British Columbia (Superintendent of Brokers),
[1994] 2 S.C.R. 557; Canada (Director of Investigation and
Research) v. Southam Inc., [1997] 1 S.C.R. 748;
and Dr. Q v. College of Physicians and Surgeons of British
Columbia, [2003] 1 S.C.R. 226.
[26]
All these judgments dealt with the issue of appeals from
decisions by specialized administrative tribunals. The issue before the Supreme Court of Canada
was whether deference applied even where the Act in question provided for a
right of appeal from decisions made by these tribunals and did not protect
their decisions through a privative clause. In these four decisions, the Supreme Court of Canada
held that a particular standard of review applied in such circumstances, a
standard that it called “reasonableness simpliciter”.
[27]
The Supreme Court of Canada also noted that
this particular standard was closely akin to the standard of review applied on
appeals from findings of fact by trial judges. There is no doubt that the
reasonableness simpliciter standard of review was the subject of a
number of criticisms and controversies. The reasons that led the Supreme Court of Canada
to establish a new standard of review rather than applying the well‑known
standard of review on appeals in such cases appear to be related to the desire
to respect the expertise and specialization of these tribunals. Thus, in Pezim v.
British Columbia
(Superintendent of Brokers), above, the appropriate
standard on an appeal from a decision by a securities commission was
established as follows at page 591 of the decision:
. . . On one hand,
we are dealing with a statutory right of appeal pursuant to s. 149 of the
Act. On the other hand, we are dealing with an appeal from a highly
specialized tribunal on an issue which arguably goes to the core of its
regulatory mandate and expertise.
This Court’s
decision in Bell Canada v. Canada (Canadian Radio‑Television and
Telecommunications Commission), 1989 CanLII 67 (S.C.C.), [1989] 1 S.C.R.
1722 (Bell Canada), is particularly helpful in deciding the present case
as it dealt with a statutory right of appeal rather than an application for
judicial review. Gonthier J., writing for this Court, stated the
following at pp. 1745‑46:
It is trite to say
that the jurisdiction of a court on appeal is much broader than the
jurisdiction of a court on judicial review. In principle, a court is
entitled, on appeal, to disagree with the reasoning of the lower tribunal.
However, within
the context of a statutory appeal from an administrative tribunal, additional
consideration must be given to the principle of specialization of duties.
Although an appeal tribunal has the right to disagree with the lower tribunal
on issues which fall within the scope of the statutory appeal, curial
deference should be given to the opinion of the lower tribunal on issues which
fall squarely within its area of expertise. [Emphasis added.]
Consequently, even
where there is no privative clause and where there is a statutory right of
appeal, the concept of the specialization of duties requires that deference be
shown to decisions of specialized tribunals on matters which fall squarely
within the tribunal’s expertise. . . .
[28]
The Supreme Court noted in Canada (Director of
Investigation and Research) v. Southam Inc., above, that this particular
standard known as reasonableness simpliciter also applied to appeals to
the Federal Court of Appeal from decisions by the Competition Tribunal and
stated as follows at paragraphs 59 and 60:
The standard of
reasonableness simpliciter is also closely akin to the standard that
this Court has said should be applied in reviewing findings of fact by trial
judges. In Stein v. “Kathy K” (The Ship), [1976] 2 S.C.R. 802, at
p. 806, Ritchie J. described the standard in the following terms:
. . . the accepted
approach of a court of appeal is to test the findings [of fact] made at trial
on the basis of whether or not they were clearly wrong rather than whether
they accorded with that court’s view of the balance of probability.
[Emphasis added.]
Even as a matter
of semantics, the closeness of the “clearly wrong” test to the standard of
reasonableness simpliciter is obvious. . . . Because the clearly wrong
test is familiar to Canadian judges, it may serve as a guide to them in
applying the standard of reasonableness simpliciter.
[29]
The reasonableness simpliciter standard thus appeared
to be closely akin to the standard of review normally applied on appeals from
findings of fact and factual inferences made at trial, with an additional
degree of deference given the specialized role generally conferred on an
administrative tribunal. Madam Justice Abella recently described the
standard of review on appeals from findings of fact and factual inferences in Rick v.
Brandsema, [2009] 1 S.C.R. 295, at paragraph 30:
. . . Findings of fact and factual
inferences made at trial, as a result, are not to be reversed unless there is
“palpable and overriding error”, or a fundamental mischaracterization or
misappreciation of the evidence (Stein v. The Ship “Kathy K”, [1976] 2 S.C.R.
802, at p. 808; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235,
at paras. 10‑18; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R.
401, at paras. 52‑76).
[30]
The reasonableness simpliciter standard was
collapsed into the reasonableness standard as a result of the Dunsmuir
decision, but it is useful to keep in mind that, in doing so, the
Supreme Court did not set aside the underlying principles of that
standard. The majority of the judges stated the following on this point at
paragraphs 44, 45 and 48 (Emphasis added.):
As explained
above, the patent unreasonableness standard was developed many years prior to
the introduction of the reasonableness simpliciter standard in Southam.
The intermediate standard was developed to respond to what the Court viewed as
problems in the operation of judicial review in Canada, particularly the
perceived all‑or‑nothing approach to deference, and in order to
create a more finely calibrated system of judicial review (see also L. Sossin
and C. M. Flood, “The Contextual Turn: Iacobucci’s Legacy and the Standard
of Review in Administrative Law” (2007), 57 U.T.L.J. 581).
However, 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. Though we are of the
view that the three‑standard model is too difficult to apply to justify
its retention, now, several years after Southam, we believe that it
would be a step backwards to simply remove the reasonableness simpliciter
standard and revert to pre‑Southam law. As we see it, the
problems that Southam attempted to remedy with the introduction of the
intermediate standard are best addressed not by three standards of review, but
by two standards, defined appropriately.
We therefore
conclude that the two variants of reasonableness review should be collapsed
into a single form of “reasonableness” review. The result is a system of judicial
review comprising two standards — correctness and reasonableness. But the
revised system cannot be expected to be simpler and more workable unless the
concepts it employs are clearly defined.
. . .
The move towards a
single reasonableness standard does not pave the way for a more intrusive
review by courts and does not represent a return to pre‑Southam
formalism. In this respect, the concept of deference, so central to
judicial review in administrative law, has perhaps been insufficiently explored
in the case law. What does deference mean in this context?
Deference is both an attitude of the court and a requirement of the law of
judicial review. It does not mean that courts are subservient to the
determinations of decision makers, or that courts must show blind reverence to
their interpretations, or that they may be content to pay lip service to the
concept of reasonableness review while in fact imposing their own view.
Rather, deference imports respect for the decision‑making process of
adjudicative bodies with regard to both the facts and the law. . . .
[31]
In determining the appropriate standard of review, the Supreme Court of Canada
invites us to conduct a two‑step analysis. “First, courts ascertain whether the jurisprudence has already determined
in a satisfactory manner the degree of deference to be accorded with regard to
a particular category of question.” (Dunsmuir, at
paragraph 62). Here, as we noted above, a clear majority of Federal Court
decisions maintained that reasonableness simpliciter was the appropriate
standard of review on appeals under subsection 14(5) of the Citizenship Act
on the issue of whether the applicant has satisfied the period of residence requirement.
That standard was closely akin to the standard of review applied on appeals
from findings of fact by trial judges. In this context, applying the reasonableness
standard here without further analysis does not seem satisfactory to me.
[32]
The Supreme Court of Canada invites us to
take the analysis to the second step, an analysis of the factors making it
possible to identify the proper standard of review (Dunsmuir, at
paragraph 64):
The analysis must
be contextual. As mentioned above, it is dependent on the application of
a number of relevant factors, including: (1) the presence or absence of a
privative clause; (2) the purpose of the tribunal as determined by
interpretation of enabling legislation; (3) the nature of the question at
issue, and; (4) the expertise of the tribunal. In many cases, it will not
be necessary to consider all of the factors, as some of them may be
determinative in the application of the reasonableness standard in a specific
case.
[33]
Here, there is no privative clause in the Citizenship Act.
Decisions made by citizenship judges are subject to a general right of appeal
to the Federal Court without leave. The purpose for which citizenship
judges act under subsection 14(1) of the Citizenship Act is to
review applications for citizenship and to determine whether the requirements
of subsection 5(1) of the Act have been met. The questions in these cases
are essentially questions of fact or mixed questions of law and fact. Citizenship
judges do not have any specialized expertise: no training or particular
expertise is required under the Citizenship Act, which simply
provides in subsection 26(1) that the “Governor in Council may
appoint any citizen to be a citizenship judge.”
[34]
Citizenship judges do not have the same degree of expertise
or specialization as the CRTC, the Securities Commission, the Competition Tribunal
or the college of physicians that were the subject of the decisions in Bell Canada v.
Canada (CRTC), Pezim v. British Columbia (Superintendent
of Brokers), Canada (Director of Investigation and Research) v.
Southam Inc., and Dr. Q v. College of Physicians and
Surgeons of British Columbia, above. Nevertheless, Parliament entrusted a
specialized task to citizenship judges, and that choice should be respected on
appeals from their decisions.
[35]
A number of factors favour the correctness standard of
review when this Court is hearing an appeal from a decision by a citizenship
judge under subsection 14(5) of the Citizenship Act. However,
respecting Parliament’s choice to entrust a specialized task to these judges
favours choosing the reasonableness standard of review to the extent that the
deference linked to that standard is sufficiently flexible to respond to the
particular context of these appeals.
[36]
The application of the reasonableness standard must be
sufficiently elastic to take into account the various types of administrative
tribunals in question. As Justice Binnie notes in Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, at
paragraph 28:
In my view, the interpretation of s. 18.1
of the Federal Courts Act must be sufficiently elastic to apply to the
decisions of hundreds of different “types” of administrators, from Cabinet
members to entry‑level fonctionnaires, who operate in different
decision‑making environments under different statutes with distinct
grants of decision‑making powers. Some of these statutory grants
have privative clauses; others do not. Some provide for a statutory right
of appeal to the courts; others do not. It cannot have been Parliament’s
intent to create by s. 18.1 of the Federal Courts Act a single, rigid
Procrustean standard of decontextualized review for all “federal board[s],
commission[s] or other tribunal[s]”, an expression which is defined (in s. 2)
to include generally all federal administrative decision‑makers. A
flexible and contextual approach to s. 18.1 obviates the need for Parliament to
set customized standards of review for each and every federal decision‑maker.
[37]
Justice Binnie also indicates in Khosa, above, at
paragraph 59, that “[r]easonableness is a single standard that
takes its colour from the context. One of the objectives of Dunsmuir
was to liberate judicial review courts from what came to be seen as undue
complexity and formalism.”
[38]
The characteristics of elasticity and adaptability of the
reasonableness standard of review suggested by Justice Binnie are
particularly applicable here since Parliament expressly excluded the operation of
section 18.1 of the Federal Courts Act in favour of a
right of appeal to the Federal Court. As the Supreme Court of Canada
has noted on a number of occasions, where Parliament has shown a clear intent
then, absent any constitutional challenge, that is the standard of review that
is to be applied: R. v. Owen, [2003] 1 S.C.R. 779,
Dunsmuir, above, at paragraph 30, Khosa, above, at paragraph 30.
[39]
In this context, I am of the view that the reasonableness
standard of review must be applied with flexibility and adapted to the particular
context in question. Thus, the Court must show deference, but a qualified
deference, when hearing an appeal from a decision by a citizenship judge under subsection 14(5)
of the Citizenship Act concerning the determination of compliance
with the residence requirement. The issues of jurisdiction, procedural fairness
and natural justice raised in these appeals are nonetheless reviewed against
the correctness standard in accordance with the principles outlined in Dunsmuir.
This is an approach that is consistent with both Parliament’s expressed
intention to subject these decisions to a right of appeal and the Supreme Court of Canada’s
teachings concerning the duty of the courts to show deference when sitting on
an appeal from decisions of administrative tribunals.
Interpretation of
paragraph 5(1)(c) of Citizenship Act
[40]
Although the wording of paragraph 5(1)(c) of
the Citizenship Act seems very clear, the case law has held otherwise.
Indeed, the wording of the subsection in question, which is reproduced in the
appendix, clearly indicates that a permanent resident must have “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: 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 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.
[41]
It is difficult to imagine clearer language. Nonetheless,
there are three competing jurisprudential schools on this issue. The first,
referred to in Mr. Justice Muldoon’s decisions in Pourghasemi (Re),
62 F.T.R. 122, [1993] F.C.J. No. 232 (QL), and Harry (Re),
144 F.T.R. 141, [1998] F.C.J. No. 189, maintains that
the wording of the Act is clear and that it requires a physical presence in
Canada for three years. The second, illustrated by Mr. Justice Thurlow’s
decision in Papadogiorgakis, [1978] 2 F.C. 208, takes the
position that the mere intention to reside in Canada is sufficient to acquire Canadian citizenship insofar as a certain
connection with Canada is maintained. In Papadogiorgakis, the Canadian
resident in question had spent very little time in Canada because he was
studying abroad, but he maintained a residence with friends in Nova Scotia.
[42]
The third jurisprudential school has become
dominant with time and it is based on Madam Justice Reed’s analysis in Koo,
above. This jurisprudential school maintains that the test is whether the
individual has centralized his or her mode of existence in Canada. To determine
whether this test has been met, six questions must be asked (Koo, at pages 293
and 294):
(1) was
the individual physically present in Canada for a long period prior to recent absences which occurred immediately
before the application for citizenship;
(2) where
are the applicant’s immediate family and dependents (and extended family)
resident;
(3) does
the pattern of physical presence in Canada indicate a returning home or merely visiting the country;
(4) what
is the extent of the physical absences ‑ if an applicant is only a few
days short of the 1095 day total it is easier to find deemed residence than if
those absences are extensive;
(5) is
the physical absence caused by a clearly temporary situation such as employment
as a missionary abroad, following a course of study abroad as a student,
accepting temporary employment abroad, accompanying a spouse who has accepted
temporary employment abroad;
(6) what
is the quality of the connection with Canada: is it more substantial than that which exists with any other country.
[43]
The Koo test was adopted in this Court’s jurisprudence
to the point that it is now, by far, the dominant test, “perhaps in
part because the six questions were specifically
set out on a form used by citizenship judges”, as Mr. Justice Martineau notes in the recent decision in Canada
(Minister of Citizenship and Immigration) v. Zhou, above, at
paragraph 9.
[44]
Taking into account these three jurisprudential schools, Mr. Justice Lutfy
(now Chief Justice), in his well reasoned decision in Lam, above, enunciated
the following principle (at paragraph 14): “[I]t 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.” This approach was largely followed subsequently: see inter alia,
Singh v. Canada (Minister of Citizenship and Immigration), 168 F.T.R. 235,
[1999] F.C.J. No. 786 (QL), at paragraph 11, So v.
Canada (Minister of Citizenship and Immigration), 2001 FCT 733,
[2001] F.C.J. No. 1232 (QL), at paragraph 29, Canada (Minister
of Citizenship and Immigration) v. Zhou, above, at paragraph 10.
[45]
However, the principle stated in Lam must be
understood in the particular context of that decision. The decision was
rendered in a situation that was perceived to be temporary given the statutory
amendments that were under consideration at the time (Lam, at
paragraph 15):
The difficulty created by
this Court’s conflicting interpretation of paragraph 5(1)(c) may soon
end. Bill C‑63 proposes the enactment of a new Citizenship of Canada Act
which is intended to clarify the residency requirement. According to the new
proposals, a person resides, for a given day, in Canada “. . . if
the person, during the day, . . . is physically present in Canada”.
This change appears to remove the discretion to credit the applicant for
citizenship, with days towards the residency requirement, when the person is in
fact absent from Canada. Bill C‑63 will also remove the statutory appeal, now
found in subsection 14(5). Consequently, if and when Bill C‑63
is enacted, the current debate concerning the legal test for residency and the
issue of the standard of review of a citizenship statutory appeal will no longer
be relevant.
[46]
In the current context, since the situation that was
perceived as temporary at that time has become permanent, it appears
appropriate, in my view, to settle on one interpretation of subsection 5(1)(c)
of the Citizenship Act. Considering the clear majority of this
Court’s jurisprudence, the centralized mode of living in Canada test established in Koo, above, and the six questions set out therein for
analytical purposes should become the only test and the only analysis.
[47]
Although I am of the view that the test of
physical presence for three years maintained by the first jurisprudential school
is consistent with the wording of the Act, it appears to me preferable to
promote a uniform approach to the interpretation and application of the statutory
provision in question. I arrive at this conclusion in an attempt to standardize
the applicable law. It is incongruous that the outcome of a citizenship
application is determined based on analyses and tests that differ from one
judge to the next. To the extent possible, coherence in administrative decision
making must be fostered, as Mr. Justice Gonthier properly indicated in IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, at page 327:
It is obvious that
coherence in administrative decision making must be fostered. The outcome
of disputes should not depend on the identity of the persons sitting on the
panel for this result would be “[translation] difficult to
reconcile with the notion of equality before the law, which is one of the main
corollaries of the rule of law, and perhaps also the most intelligible one”:
Morissette, Le contrôle de la compétence d’attribution: thèse, antithèse and
synthèse (1986), 16 R.D.U.S. 591, at p. 632.
[48]
The Federal Court of Appeal
adopted this principle in Thamotharem v. Canada (Minister
of Citizenship and Immigration), 2007 FCA 198,
[2008] 1 F.C.J. 385, at paragraph 61:
It is fundamental to the idea of justice
that adjudicators, whether in administrative tribunals or courts, strive to
ensure that similar cases receive the same treatment. This point was made
eloquently by Gonthier J. when writing for the majority in IWA v.
Consolidated‑Bathurst Packaging Ltd., 1990] 1 S.C.R. 282, at
page 327 (Consolidated‑Bathurst) . . .
[49]
Quite recently, the Federal Court of Appeal
noted that it is not reasonable to uphold two schools of jurisprudential
interpretation of the same statutory provision: Attorney General of Canada v.
Mowat, 2009 FCA 309, at paragraph 45. On this point, the
Federal Court of Appeal endorsed the following comments of
Justice Juriansz in the recent decision of the
Ontario Court of Appeal entitled Abdoulrab v. Ontario
(Labour Relations Board), 2009 ONCA 491, [2009] O.J. No. 2524 (QL), at
paragraph 48:
From a common sense
perspective, it is difficult to accept that two truly contradictory
interpretations of the same statutory provision can both be upheld as
reasonable. If two interpretations of the same statutory provision are truly
contradictory, it is difficult to envisage that they both would fall within the
range of acceptable outcomes. More importantly, it seems incompatible with the
rule of law that two contradictory interpretations of the same provision of a
public statute, by which citizens order their lives, could both be accepted as
reasonable.
[50]
Finally, as a last point, it is useful to note
that the Koo test and the six-questions analysis attached to that test are
only useful to the extent that residence in Canada has actually been established at a date prior
to the citizenship application in order to effectively calculate a period of residence
under the Citizenship Act. In fact, if the threshold issue of residence
has not been established, the judge should not conduct a more thorough
analysis. The comments of Madam Justice Layden‑Stevenson in
this respect in Goudimenko v. Canada (Minister of Citizenship and
Immigration), 2002 F.C.J. No. 581 (QL), at paragraph 13, are
relevant:
The difficulty with the appellant’s
reasoning is that it fails to address the threshold issue, his establishment of
residence in Canada. Unless the threshold test is
met, absences from Canada are irrelevant . . . In other
words, a two‑stage inquiry exists with respect to the residency
requirements of paragraph 5(1)(c) of the Act. 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.
On this
issue, see also Ahmed v. Canada (Minister of Citizenship and Immigration),
2002 F.C.J. No. 1415 (QL), at paragraph 4, and Canada (Minister of
Citizenship and Immigration) v. Farag, 2009 FC 299, 2009 F.C.J. No. 674 (QL), at paragraph 21.
Analysis of decision
[51]
Against this background, I will analyse the decision by the
citizenship judge in this case.
[52]
Here, the citizenship judge was of the view that the
respondent had centralized his mode of existence in Canada and that,
consequently, he should be granted Canadian citizenship although he had been physically
present in Canada for only 590 days during
the four years immediately preceding his application. Is this decision
reasonable? In other words, does the qualified deference that the Court must
show to the citizenship judge in his assessment of the evidence or his analyses
regarding the establishment of a residence in Canada and the determination of the centralization of mode of existence in Canada test permit the Court to intervene?
[53]
The first step is to determine whether the respondent
established his residence in Canada on a date preceding his citizenship
application in order to calculate a period of residence in Canada. Here, the citizenship judge found that the respondent
had, in fact, established his residence in Canada as of August 16, 2003, with his wife and children. In this
case, the first step of the analysis set out in the Goudimenko decision,
above, was answered in the affirmative by the citizenship judge. There is
nothing in the record to suggest that this finding of fact by the citizenship
judge was not reasonable.
[54]
Since the respondent established a residence in Canada as
of August 16, 2003, the second step is to determine, in light of the Koo
decision, whether the respondent, in fact, centralized his mode of existence in
Canada subsequent to establishing his residence. In this regard, we must
analyse the six questions in the Koo decision.
[55]
The first question to ask under the Koo analysis is
whether the respondent was physically present in Canada for a long
period prior to recent absences which occurred immediately before the
application for citizenship. The citizenship judge did not really answer this
question; he merely noted that the respondent had been absent from Canada on a
quasi‑permanent basis until August 16, 2003, the date on which
he established his residence in Canada, and that he had maintained that
residence since. Thus, instead of answering the question, the citizenship judge
used a circular argument whereby his final finding on the residence issue
compensated for the respondent’s physical absence from Canada immediately prior to his application.
[56]
The respondent did not even accumulate the 730 days of presence in Canada required under subsection 28(1) of
the Immigration and Refugee Protection Act, which is certainly an
important factor in answering the first question, to the extent that it is
desirable that a certain consistency be maintained between that Act and the
provisions concerning the acquisition of citizenship in the Citizenship Act. Moreover, the evidence in the record shows that the
application for citizenship was submitted on September 26, 2006, and
that from January 1 to September 26, 2006, the respondent was
absent from Canada for 127 days out of 269, i.e., almost half the time. Based
on the evidence, the answer to the first question does not favour granting
citizenship to the respondent.
[57]
The second question concerns where the
respondent’s immediate family and dependants as well as his extended family are
residing. The citizenship judge noted that the respondent’s wife and children
reside in Canada and are fully integrated here. On the other hand, the respondent’s
extended family resides in Lebanon. The answer to the second question certainly favours
granting citizenship if only the respondent’s wife and children are considered.
However, the citizenship judge did not analyse the links between the respondent
and his extended family in Lebanon.
[58]
The purpose of the third question is to determine whether
the respondent’s physical presence in Canada indicates that he is returning home to Canada or merely visiting. The citizenship judge noted that the respondent
regularly returns to Canada to sojourn there with his wife and children when his trips abroad are
completed. Here, the answer to the third question favours granting citizenship.
[59]
The fourth question attempts to assess the extent of the
respondent’s physical absences to determine whether he is only a few days short
of residence or whether the absences are more significant; if an applicant is
only a few days short, it may be possible to find deemed residence. The citizenship
judge properly found that the answer to this question does not favour granting
citizenship given the large number of days of absence.
[60]
The fifth question seeks to determine whether the
respondent’s physical absence is temporary or recurrent in nature. The citizenship
judge made a brief finding, in one sentence, that the respondent’s absences were
temporary since they were connected to his employment. This finding is flawed.
The citizenship judge confused the nature of the absences with their continued
recurrence. Here, the respondent works for a foreign company, and his
specialized work will not allow him to work in Canada in his specialized area in the foreseeable future. The respondent himself
believes it is improbable that he will be able to work in Canada in his field
in the foreseeable future, given the current economic situation and the petroleum
industry’s state of development in Canada in general and in Alberta in particular. Contrary to the citizenship judge’s finding in this
regard, a reasonable answer to the fifth question does not favour granting
citizenship.
[61]
The sixth question concerns the quality of the respondent’s
connection with Canada in
order to determine whether it is more substantial than that which exists with
any other country. The citizenship judge noted that the respondent’s family is
well established and integrated in Canada, that he ordinarily and repeatedly
returns to Canada and that he pays his taxes in Canada on his world‑wide
income. He concluded that the respondent’s connection with Canada was more substantial than that which existed with any
other country. There is nothing in the record to suggest that the citizenship judge’s
finding in this regard was unreasonable. As the respondent indicated in his
application for citizenship and repeated before me at the appeal hearing, Canada is now his home base. In the absence of evidence to the
contrary, I must defer to the citizenship judge on this point. Accordingly, the
answer to the sixth question favours granting citizenship to the respondent.
[62]
This is a case where the answers to a number of the six
relevant questions do not support a finding that the respondent centralized his
mode of existence in Canada during the relevant period.
[63]
On the contrary, the respondent spent much more time
outside Canada than in the country during
the relevant period, and the evidence indicates that this situation is neither
temporary nor unusual.
[64]
The decision by the citizenship judge is therefore not reasonable
in a number of respects, which allows this Court to intervene and to grant the
appeal. Consequently, the appeal will be allowed.
[65]
Of course, the respondent may submit another application
for citizenship if he decides that this is appropriate, and it will be examined
on the basis of another period of reference.
[66]
The Minister did not request costs when the appeal was
filed, but at the hearing his counsel asked orally for an amendment to add a
request for costs. Given the late request for costs and the particular
circumstances of the case, I am not awarding any costs.
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