Date: 20091112
Docket: T-984-08
Citation: 2009 FC 1153
Ottawa, Ontario, November 12,
2009
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
DING
YAN
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Ding
Yang (identified in the style of cause as Ding Yan) appeals the refusal of his
citizenship application pursuant to subsection 14(5) of the Citizenship Act
(“Act”), section 18.1 of the Federal Courts Act, and rule 300 of
the Federal Court Rules.
[2]
Mr.
Yang contends the Citizenship Judge lost jurisdiction due to delay and/or
because the Judge did not consider all the evidence demonstrating residency. Mr.
Yang seeks as a remedy a declaration by this Court essentially confirming his entitlement
to citizenship.
FACTS
[3]
Mr. Yang
is 29 years old and from Hunan in the People’s Republic of China. He first came to Canada on January 24, 1997 and he
became a permanent resident on June 24, 2002. He applied to become a Canadian
citizen on October 18, 2004.
[4]
The time
period relevant to Mr. Yang’s citizenship application is October 18, 2000 to
October 18, 2004. As calculated under the Act, Mr. Yang was physically
present in Canada 1059 days, 36 days short of
the minimum 1095 days required in a four pear period. Mr. Yang was absent for
family visits to China and sightseeing.
[5]
Mr. Yang
sought to prove he established residence in Canada notwithstanding his absences. He had been
married to a Canadian woman but later divorced. He entered into business
relationships; he owned a condominium which he subsequently sold; and he was
registered to study at York
University. He even
submitted documentation about being charged and convicted of summary offences,
initially to show the convictions did not adversely affect his application but
later submitting it also demonstrating residency.
[6]
The
Citizenship Judge interviewed Mr. Yang on January 15, 2007. At the conclusion
of the hearing, the Judge reserved his decision and requested more documentation.
Mr. Yang submitted further information to the Citizenship Judge on January 15
and February 9, 2007.
DECISION
UNDER APPEAL
[7]
On April
24, 2008, the Citizenship Judge issued the decision on Mr. Yang’s application
for citizenship.
[8]
The
Citizenship Judge noted that Mr. Yang was short 36 days of the minimum 1095 days
residency required during the four years preceding application. The Judge referred to Mr.
Yang’s acknowledgement that his application was dependent on the submission of additional
documentation and stated Mr. Yang failed to provide the additional documents
requested. Finally, some of the documents did not relate to the relevant time
period.
[9]
The
Citizenship Judge stated in part:
… You stated in your application that you
were physically present in Canada for 1154 days during the
relevant period and absent 95 days. You are 36 days short of the minimum
requirement of 1,095 days as prescribed in Paragraph 5(1)(c) of the Act.
At the hearing, you were requested to
provide additional documents to support your claim of residence in Canada. The letter of January 15,
2007, which you were given at the interview further stated that “I understand
that, should such documentation not be provided, my Citizenship Application
will be [sic] non approved by the Judge.”
To date, you have failed to provide the
additional documents requested and some documents are not within the four year
review period (October 18, 2000 to October 18, 2004). …
I was therefore unable to determine
whether or not you met all the requirements of the Act with respect to [sic]
“Residence”.
The Issue:
Have you, the applicant, accumulated at
least three years (1,095 days) of residence in Canada within the four years
(1,460 days) immediately preceding the date of your application for Canadian
citizenship?
Decision:
For reasons provided above, I am unable
to approve your application because you have not met the residence requirement
under paragraph 5(1)(c) of the Act…
[10]
The Judge
refused Mr. Yang’s application for citizenship.
ISSUES
[11]
The
issues in this appeal are:
1. What
is the effect of the Citizenship Judge’s failure to render a decision within
the 60 days required by the Act?
2. Did
the Citizenship Judge err in refusing the citizenship application?
3.
What remedy is available if the citizenship
judge erred in respect of either of the above issues?
LEGISLATION
[12]
The
Act provides:
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;
…
14.
(1) An application for
(a)
a grant of citizenship under subsection 5(1) or (5),
(b)
[Repealed, 2008, c. 14, s. 10]
(c)
a renunciation of citizenship under subsection 9(1), or
(d)
a resumption of citizenship under subsection 11(1)
shall
be considered by a citizenship judge who shall, within sixty days of the day
the application was referred to the judge, determine whether or not the
person who made the application meets the requirements of this Act and the
regulations with respect to the application.
Interruption
of proceedings
(1.1)
Where an applicant is a permanent resident who is the subject of an
admissibility hearing under the Immigration and Refugee Protection Act, the
citizenship judge may not make a determination under subsection (1) until
there has been a final determination whether, for the purposes of that Act, a
removal order shall be made against that applicant.
(1.2)
[Repealed, 2001, c. 27, s. 230]
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.
Notice
to applicant
(3)
Where a citizenship judge does not approve an application under subsection
(2), the judge shall forthwith notify the applicant of his decision, of the
reasons therefor and of the right to appeal.
Sufficiency
(4)
A notice referred to in subsection (3) is sufficient if it is sent by
registered mail to the applicant at his latest known address.
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.
…
15.
(1) Where a citizenship judge is unable to approve an application under
subsection 14(2), the judge shall, before deciding not to approve it,
consider whether or not to recommend an exercise of discretion under
subsection 5(3) or (4) or subsection 9(2) as the circumstances may require.
|
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;
…
14.
(1) Dans les soixante jours de sa saisine, le juge de la citoyenneté statue
sur la conformité — avec les dispositions applicables en l’espèce de la
présente loi et de ses règlements — des demandes déposées en vue de :
a)
l’attribution de la citoyenneté, au titre des paragraphes 5(1) ou (5);
b)
[Abrogé, 2008, ch. 14, art. 10]
c)
la répudiation de la citoyenneté, au titre du paragraphe 9(1);
d)
la réintégration dans la citoyenneté, au titre du paragraphe 11(1).
Interruption
de la procédure
(1.1)
Le juge de la citoyenneté ne peut toutefois statuer sur la demande émanant
d’un résident permanent qui fait l’objet d’une enquête dans le cadre de la
Loi sur l’immigration et la protection des réfugiés tant qu’il n’a pas été
décidé en dernier ressort si une mesure de renvoi devrait être prise contre
lui.
(1.2)
[Abrogé, 2001, ch. 27, art. 230]
Information
du ministre
(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.
Information
du demandeur
(3)
En cas de rejet de la demande, le juge de la citoyenneté en informe sans
délai le demandeur en lui faisant connaître les motifs de sa décision et
l’existence d’un droit d’appel.
Transmission
(4)
L’obligation d’informer prévue au paragraphe (3) peut être remplie par avis
expédié par courrier recommandé au demandeur à sa dernière adresse connue.
Appel
(5)
Le ministre et le demandeur peuvent interjeter appel de la décision du juge
de la citoyenneté en déposant un avis d’appel au greffe de la Cour dans les
soixante jours suivant la date, selon le cas :
a)
de l’approbation de la demande;
b)
de la communication, par courrier ou tout autre moyen, de la décision de
rejet.
Caractère
définitif de la décision
(6)
La décision de la Cour rendue sur l’appel prévu au paragraphe (5) est, sous
réserve de l’article 20, définitive et, par dérogation à toute autre loi
fédérale, non susceptible d’appel.
…
15.
(1) Avant de rendre une décision de rejet, le juge de la citoyenneté examine
s’il y a lieu de recommander l’exercice du pouvoir discrétionnaire prévu aux
paragraphes 5(3) ou (4) ou 9(2), selon le cas.
|
STANDARD OF REVIEW
[13]
In
Lam v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 410, Chief Justice Lutfy stated on citizenship appeals at para. 33:
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.
[14]
In
Mizani v. Canada (Minister of Citizenship and Immigration), 2007 FC 698,
Justice Tremblay-Lamer further distinguished between the interpretation of
statutes or jurisprudence and fact finding by citizenship judges:
7
It is well
established that correctness is the appropriate standard of review for pure
questions of law. Thus, this Court must first determine whether the Citizenship
Judge selected the correct legal test in making the contested residency determination.
8
The remainder of the decision, involving the application of facts to the law of
residency, is clearly a matter of mixed fact and law. I also note that while
there is no privative clause, citizenship judges acquire a certain expertise in
residency cases such as the present one (Farshchi v. Canada (Minister of Citizenship and
Immigration), 2007 FC
487, [2007] F.C.J. No. 674 (QL) at para. 8). As I previously stated in Canada (Minister of Citizenship and
Immigration) v. Fu,
[2004] F.C.J. No. 88 (QL), at paragraph 7, I am convinced that a pragmatic and
functional analysis reveals that the appropriate standard of review is
reasonableness simpliciter.
[15]
In
Dunsmuir v. New Brunswick, 2008 SCC 9 the Supreme Court held it was not
necessary to conduct a standard of review analysis where a standard was
previously decided. Accordingly I conclude the standard of review in this
matter is correctness in the interpretation of statute or jurisprudence and
reasonableness in the application of facts to the law.
ANALYSIS
Sixty Day Requirement for Decision
[16]
Mr.
Yang contends he was prejudiced by delay since he left Canada shortly
after the hearing to work for family in China, and by implication he lost the
opportunity to remedy the 36 day shortfall by staying in Canada. The
Respondent responds by simply noting that Mr. Yang left even before the 60 days
period expired.
[17]
The
Act provides:
14.
(1) An application for
(a)
a grant of citizenship under subsection 5(1),
…
shall
be considered by a citizenship judge who shall, within sixty days of the day
the application was referred to the judge, determine whether or not the
person who made the application meets the requirements of this Act and the
regulations with respect to the application.
(emphasis
added)
|
14. (1) Dans les soixante jours de sa saisine, le juge
de la citoyenneté statue sur la conformité — avec les dispositions
applicables en l’espèce de la présente loi et de ses règlements — des
demandes déposées en vue de :
a) l’attribution de la citoyenneté, au titre des
paragraphes 5(1) ou (5)…
|
[18]
The
Act is silent on the consequence of a decision rendered outside of the
60 days.
[19]
In
Chung (Re), [1998] F.C.J. No. 754, Justice Joyal found the 60 day limit
in the Act was a procedural right. He found since section 14 of the Act
at that time provided for an appeal de novo there was an effective
recourse for a breach of the 60 day limit. However, Chung was decided
before Rule 300 was amended to no longer permit appeals de novo.
[20]
In
Sahota v. Canada (Minister of Citizenship and Immigration), 2004
FC 52 a Citizenship Judge refused to adjourn a hearing beyond the 60 days allowed
for decision in the Act. The applicant was ineligible for citizenship
until after completing probation for a criminal conviction and wanted the judge
to wait. He would still have been on probation at the expiry of the 60 day
period. Justice Mactavish considered the citizenship judge bound by the 60 day
time limit. She stated “[a] denial of procedural fairness will not cause a
reviewing court to set aside a decision where the court is satisfied that the
breach could not have affected the result.” Sahota para. 20.
[21]
The
Act states the judge “shall” render a decision within 60 days. Section
11 of the Interpretation Act states “shall” is imperative. However, as
noted in The Interpretation of Statutes, there is room for two types of
procedural requirements in statute: mandatory and directory:
“A strong line of distinction may be
drawn between cases where the prescriptions of the Act affect the performance
of a duty and where they relate to a privilege or power. Where powers, rights
or immunities are granted with a direction that certain regulations, …shall be
complied with, it seems neither unjust nor inconvenient to exact a rigorous
observance of them as essential to the acquisition of the right or authority
conferred, …. But when a public duty is imposed and the statue requires that
it shall be performed in a certain manner, or within a certain time,
or under other specified conditions, such prescriptions may well be regarded
as intended to be directory only in cases when injustice or inconvenience to
others who have no control over those exercising the duty would result if such
requirements were essential and imperative.” 10th ed. (1953) at 376-77. As quoted in Principles of
Administrative Law, 5th ed. Jones and de Villar, 2009 (Carswell,
Toronto).
(emphasis added)
[22]
Justice
Lemieux considered this issue in McMahon v. Canada (Attorney
General),
2004 FC 540. He stated:
13 …it has long been settled by the
jurisprudence that, in certain circumstances, the word "shall" is to
be interpreted as directory in which case failure to comply will not lead to
invalidity.
14
The
application of this principle in Canadian law reaches back at least to the
Privy Council's decision in Montreal Street Railway Co. v. Normandin, [1917]
A.C. 170, referred to by the Supreme Court of Canada in Reference re: Manitoba
Language Rights, [1985] 1 S.C.R. 721, and applied recently by the Federal Court
of Appeal in McCain Foods Ltd. v. Canada (National Transportation Agency), [1993] 1 F.C. 583 and in Canadian National
Railway Co. v. Ferroequus Railway Co., [2002] F.C.J. No. 762, 2002 FCA 193.
…
16
The
approach mandated in Montreal Street Railway, supra, is a contextual one which
requires the object of the statute must be examined in every case.
17
Sir
Arthur Channell went on to say as follows:
When
the provisions of a statute relate to the performance of a public duty and the
case is such that to hold null and void acts done in neglect of this duty would
work serious general inconvenience or injustice to persons who have no control
over those entrusted with the duty,
and at the same time would not promote the main object of the legislature, it
has been the practice to hold such provisions to be directory only, the neglect
of them, though punishable, not affecting the validity of the acts done.
(emphasis
added)
[23]
The
Federal Court of Appeal upheld Justice Lemieux’s finding that the provision in
question was directory. McMahon v. Canada (Attorney
General),
2005 FCA 33, [2005] F.C.J. No. 166.
[24]
The
Act confers citizenship when an applicant meets the statutory
requirements. Voiding citizenship decisions for being late would cause serious
inconvenience and injustice for successful applicants. They would not be able
to go about their affairs with the certain knowledge of citizenship. Equally
important is the timely informing of unsuccessful applicants so that they may
address shortcomings in their applications and apply anew.
[25]
In
my view the 60 day requirement in section 14(5) of the Act is directory.
The Citizenship Judge did not lose jurisdiction because the delay exceeded the
prescribed 60 days.
Did the Citizenship Judge err in refusing
the citizenship application?
[26]
In
Mizani Justice Tremblay-Lamer described the jurisprudence that has
emerged on the question of residency required to qualify for citizenship:
9.
The legal criteria
for citizenship are set out in subsection 5(1) of the Act (see annex for the
relevant statutory provision). Among other things, it requires an applicant to
have accumulated three years of residence in Canada
during the previous four years. Though the term "residence" is
undefined in the Act itself, it has been interpreted in various ways by this
Court Canada (Minister of Citizenship and Immigration) v. Nandre, 2003
FCT 650, [2003] F.C.J. No. 841 (QL) at para. 6).
Three
Tests
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).
(emphasis added)
[27]
A
Citizenship Judge may apply any one of the three tests in deciding if the
residency requirement is met. Lam
supra, Hsu v. Canada (Minister of Citizenship and Immigration), 2001 FCT 579, [2001] F.C.J. No. 862.
[28]
The Judge may not
“blend” the tests but may discuss alternatives in explaining the choice of test
applied. In Tulupnikov, 2006 FC 1439 , Justice Gibson wrote:
21 ….
I am satisfied that the reasons for decision here under consideration are
sufficient …. In brief: the reasons clearly and succinctly demonstrate the
Judge's conclusion that, against the "strict count of days" test,
that is to say the Pourghasemi test, the Applicant's application for
Canadian citizenship must fail. The fact that the Judge then goes on to
comment extensively on the documentary evidence provided by the Applicant is
irrelevant to the decision except in so far as it serves to explain why the
Judge chose not to, or perhaps felt compelled not to, adopt the "quality
of residence" test or the "centralization of mode of existence"
test, both of which were open to him as alternatives to the "strict count
of days" test. That the Judge then went on, without reference
back to his conclusion on the "strict count of days" test, to
conclude that he was unable to approve the Applicant's application because the
Applicant had not met the residence requirement under paragraph 5(1)(c) of the Act, is entirely
insufficient, if indeed, it is confusing at all, to justify allowing this
appeal.
(emphasis added)
[29]
The
Act requires the Citizenship Judge to give reasons. This is especially
important where the judge refuses an application for citizenship. Jurisprudence
calls for clear reasons. In Mueller v. Canada (Minister of
Citizenship and Immigration), 2008 FC 961, Justice Barnes wrote:
8
…. Here I cannot
tell which test for residency was applied but, suffice it to say, the test is
not defined by the language employed by the Citizenship Court.
If the Citizenship
Court was attempting
to apply the centralized mode of living test, it should have said so. Indeed,
the Citizenship Court should, in its reasons, cite the
specific authority that it is applying to avoid any confusion or doubt about
how it is assessing the residency requirement. If it is applying a test other
than the strict numerical standard, it also has an obligation to identify the
material evidence before it and, where residency is not established, to explain
why that evidence was insufficient.
(emphasis added)
[30]
The
Citizenship Judge’s reasons in this case are confusing. From the onset, Mr.
Yang acknowledged his shortfall in days of physical presence in Canada. He requested
the Citizenship Judge consider the centralized mode of living test. The Judge
appeared to do so by reserving his decision and requesting more documents. However,
the Judge then appears to dismiss any consideration of a centralized mode of
living test and revert to a strict count of days.
[31]
While
citizenship judges may select which residency test to apply, applicants are
entitled to clear and meaningful reasons. In Chowdhury v. Canada (Minister of
Citizenship and Immigration), 2009 FC 709, Justice Teitelbaum found a
mixed message and lack of guidance provided in the decision led him to conclude
the citizenship judge erred.
[32]
I
am unable to say if the Citizenship Judge rejected the centralized mode of
living approach because the Applicant gave what appears to be a waiver or
because the documents and other information which had been submitted by Mr.
Yang were inadequate. If the Citizenship Judge decided on the basis of an
apparent waiver, that would be an error, since the judge is duty bound to
consider the application. The Judge’s use of the formalistic phrase “For
reasons above” does not inform the Applicant in any meaningful way how his
application for citizenship is deficient.
[33]
In
my view the Citizenship Judge’s decision does not provide the Applicant with
clear and meaningful reasons as required by the Act and jurisprudence. In
this regard, the judge erred.
Available
Remedies
[34]
The
Citizenship Judge breached the 60 day time period for rendering a decision. However,
the breach of a procedural right cannot give rise to a substantive right, Ho
(Re) 1997 F.C.J. 1154.
[35]
Nothing
in the Act remotely suggests citizenship can be achieved by any other
means than what is set out in the legislation.
[36]
The
record before this Court is not complete. For instance, the interview of Mr.
Yang is not available. In these circumstances, I consider it appropriate to
remit the hearing back for re-determination before another citizenship judge.
[37]
Finally,
there remains the matter of addressing the failure to issue a decision within
the statutory 60 day period. No explanation is offered for the fifteen month
delay of the ruling on Mr. Yang’s citizenship application.
[38]
Costs
have been awarded because failure to comply with a directory requirement should
not be sanctioned. In McMahon (F.C.A.), the Federal Court of Appeal
awarded costs for the unsuccessful applicant at both levels of court because non-compliance
with a directory requirement should not be sanctioned.
[39]
Accordingly,
I find the Applicant is entitled to costs.
CONCLUSION
[40]
I allow this appeal
and direct that this matter be re-determined by a different Judge of the Citizenship Court.
[41]
Costs
are awarded to the Applicant.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
the appeal is
allowed;
2.
this matter is remitted back to be
re-determined by a different Judge of the Citizenship
Court; and
3.
costs
are awarded to the Applicant.
“Leonard
S. Mandamin”