Date: 20110128
Docket: T-1073-10
Citation: 2011 FC 46
Ottawa, Ontario, January 28, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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TINGMEI HAO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
issue in this case is whether, in considering an application for Canadian
citizenship, the Citizenship Judge erred in applying one of several tests for
determining the residency requirements that have been previously approved by
this Court. Recently, some judges of this Court have adopted the view that just
one of these tests should prevail. This would, undoubtedly, avoid inconsistency
in the administration of the statute. Should an appeal from the Citizenship
Judge’s decision be granted when the judge chose to apply one test over another
and the decision is not otherwise unreasonable?
BACKGROUND
[2]
This
is an appeal pursuant to section 14(5) of the Citizenship Act, R.S.C.
1985, c. C-29 of the decision made on May 18, 2010 by Citizenship Judge, Robert
D. Watt, refusing the applicant’s application for citizenship. Such appeals
proceed by way of application based on the record before the citizenship judge
and are governed by the Federal Courts Rules pertaining to applications:
Rule 300 (c); Canada (Minister of Citizenship and Immigration)
v. Wang,
2009 FC 1290, Imm. L.R. (3d) 184. There are no further appeals from decisions
of this Court. If the matter is not sent back for redetermination, an
unsuccessful applicant who meets the statutory criteria may reapply.
[3]
The
applicant, a citizen of China, arrived in Canada with her
parents as a permanent resident on February 3, 2003 when she was 13 years of
age. In the subsequent six years, she was repeatedly absent from Canada for prolonged
periods of time, the first beginning just 17 days after her arrival. During her
absences, the applicant visited relatives and attended high school in China. She attended
a secondary school in Vancouver, BC from September 2004
through October 2006 and completed grades 10 and 11 there. For much of 2007, the
applicant was in China. During that time she finished high school in
her hometown of Tianjin. Returning to Canada, she pursued
post-secondary education and applied for citizenship on January 3, 2009. A
hearing was conducted before the Citizenship Judge on March 31, 2010. The
applicant was informed of the judge’s decision and reasons in a letter dated
May 18, 2010.
DECISION UNDER APPEAL:
[4]
The
Citizenship Judge used the period between January 3, 2005 and January 3, 2009
to calculate the applicant’s residency in Canada.
[5]
The
Citizenship Judge noted that he relied on the analytical approach of Justice Francis
Muldoon in Re Pourghasemi (1993), 62 F.T.R. 122, 19 Imm. L.R. (2d) 259, in which it
was deemed necessary for a potential citizen to establish that he or she has
been physically present in the country for a total of 1095 days during
the four years preceding the application for citizenship.
[6]
The
Citizenship Judge calculated that the application showed a presence in Canada of 972 days
with a shortfall of 123 days from the 1095 that would amount to three of the
preceding four years. He concluded that the applicant’s frequent travel to China to visit
family, including a terminally ill grandfather, or to undertake and complete
high school studies, prevented the applicant from meeting the minimum
requirement for physical presence in Canada. He therefore concluded
that Ms. Hao did not meet the requirements for citizenship as stipulated in
paragraph 5(1)(c) of the Citizenship Act.
[7]
Citizenship
Judge Watt considered that the object and purpose of paragraph 5(1)(c), as
discussed in Pourghasemi, is to ensure that individuals seeking
citizenship become “Canadianized” by “rubbing elbows” with Canadians in the
normal routine of everyday living. Being present in the country for this period
of time would allow the applicant to observe and grow accustomed to Canadian
society and to its values. Not to have such experiences would effectively allow
a person “who is still a foreigner in experience, social adaptation, and often
in thought and outlook” to be granted citizenship.
[8]
On
the information available to him, the Citizenship Judge also determined that
this was not a case to make a favourable recommendation for a discretionary
grant of citizenship under subsections 5(4) and 15(1) of the Act. In his
view, there were “inadequate circumstances of special and unusual hardship or
services of an exceptional value to Canada” to warrant such a
recommendation. This discretionary determination was not challenged on this
application.
ISSUE:
[9]
As
noted above, the sole issue on this application, apart from the question of
costs, is as follows:
Is there one
correct test to be used by a citizenship judge in determining whether the
applicant met the residence requirement under subsection 5(1)(c) of the Citizenship
Act?
RELEVANT STATUTORY PROVISONS:
[10]
Section
5(1)(c) sets out the method of calculating the length of residence, for
permanent residents seeking citizenship, but does not define the term:
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Grant
of citizenship
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Attribution de
la citoyenneté
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5. (1)
The Minister shall grant citizenship to any person who
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5. (1) Le ministre attribue la
citoyenneté à toute personne qui, à la fois :
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[…]
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[…]
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(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:
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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 :
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(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
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(i) un
demi-jour pour chaque jour de résidence au Canada avant son admission à titre
de résident permanent,
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(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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(ii)
un jour pour chaque jour de résidence au Canada après son admission à titre
de résident permanent
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ANALYSIS:
[11]
The
parties agree that the overall standard of review to be applied in an appeal
from a citizenship decision is reasonableness. The weight of Federal Court
jurisprudence, both prior to and subsequent to the decision of the Supreme
Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, supports that conclusion. See for example: Chen v. Canada (Minister of
Citizenship and Immigration), 2006 FC 85 at para. 6; Canada (Minister of
Citizenship & Immigration) v. Ryan, 2009 FC 1159 at paras.
13-16.
[12]
Justice
James Russell described the consensus in Pourzand v. Canada (Minister of
Citizenship and Immigration), 2008 FC 395, 71 Imm. L.R. (3d) 289 at
paras. 19-20:
[19] There has been general
consensus in the jurisprudence of this Court that the applicable standard of
review for a citizenship judge’s determination of whether an applicant meets
the residency requirement, which is a question of mixed fact and law, is
reasonableness simpliciter (Canada (Minister of Citizenship and
Immigration) v. Chang, 2003 FC 1472; Rizvi v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1641; Chen v. Canada (Minister of
Citizenship and Immigration), 2006 FC 85; Zhao v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1536). In light of the Supreme Court
of Canada’s recent decision in Dunsmuir v. New Brunswick, 2008 SCC 9
[Dunsmuir], wherein the Court collapsed this standard and the patent
unreasonableness standards into one standard of reasonableness, I find that the
applicable standard of review as regards the Citizenship Judge’s determination
of whether the Applicant met the residency requirement is reasonableness.
[20] With respect to the
alleged factual errors, a number of pre-Dunsmuir authorities from this Court
held that the patent unreasonableness standard was to be applied to a
citizenship judge’s findings of fact. Considerable deference is owed to
citizenship judges’ findings of fact, as they have access to the original
documents and an opportunity to discuss the relevant facts with the applicant.
Thus, applying Dunsmuir, these findings are also reviewable on a reasonableness
standard. I note, however, that even if the patent unreasonableness standard
had been applied when reviewing the Citizenship Judge’s findings of fact in the
present case, my findings would have been the same.
[13]
While
there has been and continues to be general agreement that the standard of
review of a citizenship decision is reasonableness, judges of this Court have
disagreed as to how the residency requirement was to be interpreted. This stems
in part from the fact that the Federal Courts Rules formerly required
that these appeals be heard de novo rather than by application. Thus, it
was necessary, prior to changes in the Rules, for a judge of this Court hearing
an appeal from a citizenship judge’s decision to make a fresh determination as
to whether the statutory requirements had been met by the claimant. In so doing,
the Court had to determine what was meant by “resident” (“résidence”) in
paragraph 5(1)(c) of the Act. With the change in the Rules to
treat these appeals as applications, to set aside a decision of a citizenship
judge requires a finding of reviewable error: Canada (Ministre de
la Citoyenneté et de l’immigration) v. Tovbin (2000) 10 Imm. L.R.
(3d) 306, 190 F.T.R. 102.
[14]
The
interpretation of the residency requirement which may be described as the most
generous to an applicant who has not been physically present in Canada for
three of the preceding four years is that exemplified by Associate Chief Justice
Arthur Thurlow's decision in Papadogiorgakis (Re), [1978] 2 F.C. 208.
There it was held that a person with an established home in Canada can leave
for extended periods and still be regarded as a resident of Canada. In Associate Chief Justice Thurlow’s
opinion, the question to be determined is whether the person has centralized
his or her mode of living in Canada through social relations and other
interests. It is the quality of the attachment to Canada, rather than
the number of days actually spent here, that is important to those who
subscribe to this view.
[15]
A
narrower interpretation of the legislation is reflected in Justice Muldoon's
decisions in
Pourghasemi
(Re),
above, and Harry (Re) (1998), 144 F.T.R. 141, 77 A.C.W.S. (3d)
933. Justice Muldoon held that the wording of the Act is clear. It requires
a physical presence in Canada for three years in the four years prior to
the application. Justice Muldoon felt strongly that the Court should not adopt
an interpretation inconsistent with the plain language of the statute to
accommodate applicants who were not prepared to spend three out of four years
in the country prior to claiming citizenship.
[16]
Occupying
what may be characterized as the middle ground is Justice Barbara Reed's
analysis in
Koo (Re) (1992), 59 F.T.R. 27, 19 Imm.
L.R. (2d) 1. Justice Reed accepted Associate Chief Justice Thurlow’s view in Papadogiorgakis that persons may have
centralized their existence in Canada without being physically present for three out of the four
years. Justice Reed set out six, non-exhaustive questions to determine whether
the person regularly, normally or customarily lived in Canada during the preceding four
years.
[17]
The
"centralized existence test" assessed by Justice Reed’s six questions
has come to be the preferred standard used by citizenship judges to determine
whether an applicant has satisfied the residence requirement. Justice James
O’Reilly described the test in Canada (Minister of Citizenship and Immigration)
v. Nandre,
2003 FCT 650, 234 F.T.R. 245, at paragraph 21 as a qualitative standard to be
applied when a person has not met the physical test. In his view, the
connection to Canada would have to be quite
strong for absences to be considered periods of continued residency.
[18]
This qualitative
assessment appears to have been encouraged by the Minister by, among other
things, providing standardized forms for the citizenship judges which set out
the six Koo questions as factors to be considered in making the
residency determination.
[19]
While
it is sometimes said that there are three tests of residence, there are
effectively only two: strict physical presence
or residency as determined by the Koo qualitative factors.
[20]
Notwithstanding
the dominance of the Koo test and the change in the manner in which
these appeals are heard, the use of the physical presence standard to
determine residence has continued to be accepted by this Court. Justice Allan Lutfy
(now Chief Justice), considered the matter after a change in the Court’s Rules
to treat these appeals as an application rather than a de novo hearing.
In Lam v. Canada (Minister of Citizenship & Immigration) (1999), 164 F.T.R. 177, 87
A.C.W.S. (3d) 432,
Justice Lutfy held that it was open to the citizenship judge
to adopt either of the conflicting interpretations
represented by the Koo test or by Pourghasemi, so long as the
judge properly applied the principles of the chosen approach to the facts
of the case.
[21]
When
Lam was decided, legislative proposals to amend the Citizenship Act
were before Parliament in Bill C-63. If adopted in the form tabled, Bill C-63 would
have expressly required that physical presence serve as the test of residence. Justice
Lutfy considered that the conflict in the jurisprudence would presumably be
resolved when Bill C-63 was enacted. In the interim, he reasoned, it was not
appropriate for judges on appeal to substitute their different opinions of the
residency requirement for those of the citizenship judges. He considered that
deference was owed to the special knowledge and experience of the citizenship
judge, particularly "during this period of transition". That is,
until the proposed amendments were adopted by Parliament.
[22]
As
it turned out, Bill C-63 was not enacted. However, similar proposals are once again
before Parliament in the form of Bill C-37, An Act to Amend the Citizenship
Act (2010), introduced on June 10, 2010. Bill C-37 remains at the first reading
stage as of the date of writing.
[23]
This
Court has, until recently, consistently followed the position stated in Lam.
See for example:
Canada (Minister of
Citizenship and Immigration) v. Wall, 2005 FC 110, 45 Imm. L.R. (3d) 32; Canada (Minister of
Citizenship and Immigration) v. Zhou, 2008 FC 939; Canada (Minister of
Citizenship and Immigration) v. Ntilivamunda, 2008 FC 1081; Canada
(Minister of Citizenship and Immigration) v. Jeizan 2010 FC 323.
[24]
The
determination of residency by citizenship judges has involved a two stage
process. A threshold determination is made as to whether residence has been
established in Canada. If it has not been
established, the matter ends. If residence has been established, the second
stage requires a determination as to whether the applicant’s residency
satisfies the statutorily prescribed number of days. It has remained open to
citizenship judges to choose either of the two jurisprudential schools
represented by Pourghasemi and Papadogiorgakis/Koo in making
that determination so long as they reasonably applied their preferred
interpretation of the statute to the facts of the application before them.
[25]
I
note that this situation attracted expressions of concern from the Court.
Indeed,
Justice Muldoon recognized that the conflicting interpretations of the
residency requirement created what he described at paragraph 22 of Harry,
as a “scandalous incertitude in the law”. In Lin
v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 346, 21 Imm. L.R. (3d) 104 at
paragraph 19, Justice Eleanor Dawson (now of the Federal Court of Appeal) was
moved to comment that “[t]here can be no more than one correct interpretation
of paragraph 5 (1) (c)”. She echoed the comments of Justice Marc Nadon, as he
then was, in Chen v. Canada (Minister of
Citizenship and Immigration) 2001 FCT 1229, 17 Imm. L.R. (3d) 222,
“that justice and fairness will no longer be achieved by the approach suggested
in Lam, supra”. The situation, Justice Dawson stated at paragraph 21,
“can only be remedied by Parliament clearly expressing its will with respect to
the residence requirement”.
[26]
Absent
Parliamentary action in the interim, the status quo in this regard has
recently been called into question.
[27]
In
Canada (Minister of
Citizenship & Immigration) v. Takla, 2009 FC 1120, 359
F.T.R. 248, Justice Robert Mainville (now of the Federal Court of Appeal)
conducted a thorough analysis of the jurisprudence relating to the standard to
be applied in an appeal from a citizenship judge’s decision. He concluded, at
paragraphs 38 and 39 of his reasons, that the characteristics of the
reasonableness standard were particularly applicable in this context but that
the Court owed only a qualified deference to a citizenship judge’s
determination of compliance with the residence requirement. Justice Mainville
considered that it was now appropriate to settle on one interpretation of
paragraph 5(1)(c): that 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 of residency.
[28]
In
comments at paragraphs 41 and 47 of his reasons in Takla, Justice
Mainville indicates that on a plain reading of the legislation he would have
preferred the physical presence test required by the Pourghasemi
interpretation. I agree with Justice Mainville that this interpretation appears
to be what Parliament intended when it enacted paragraph 5(1)(c) and provided
that a person need not be actually resident in Canada for one of the four years
prior to the application. A reasonable inference from a reading of the Act
as a whole is that Parliament intended a one year period to be sufficient to accommodate
an applicant’s necessary absences while he or she was establishing residency in
this country.
[29]
Notwithstanding
his reading of the legislation, Justice Mainville thought it necessary to resolve
the continuing divergence of views as to the correct interpretation of the
statute in favour of the Koo test. He did so, Justice Mainville
explained, because Koo had become the preferred standard and because it was
preferable to promote a uniform approach to the interpretation and application
of statutory language. In support of the latter conclusion, Justice Mainville
cited Attorney General of Canada v. Mowat, 2009 FCA 309, 312 D.L.R. (4th)
294, appeal to the Supreme Court of Canada reserved (December 13, 2010) [2009]
S.C.C.A. No. 545 (QL).
[30]
Mowat
is
one of several cases that have addressed the issue of consistency in
administrative decision making following the decision of the Supreme Court of
Canada in Dunsmuir, above.
[31]
Prior
to Dunsmuir, the prevailing view in the jurisprudence appeared to be
that where the standard of review was not correctness, the Courts should not
intervene to resolve inconsistencies in a tribunal’s interpretation of its enabling
statute. A lack of unanimity was considered to be the price to pay for the
decision-making freedom and independence given to tribunal members: Domtar Inc. v. Quebec (Commission d’appel en
matière de lésions professionnelles), [1993] 2 S.C.R. 756 at para. 94; Essex
County Roman Catholic Board v. Ontario English Catholic Teachers’ Association
(2001), 56 O.R. (3d) 85 at paras. 29 and 30 (C.A.); National Steel Car Ltd.
v. United Steelworkers of America, Local 7135 (2006), 278 D.L.R. (4th)
345, 218 O.A.C. 207 at para. 31 (C.A.); Hydro Ottawa Ltd. v. I.B.E.W., Local 636 (2007), 85
O.R. (3d) 727 at para. 59 (C.A.); Ottawa Police Assn. v. Ottawa Police Services
Board (2008),
233 O.A.C. 51 at para. 30.
[32]
A
refinement of this approach in the cases was that judicial interference was
warranted where operational conflicts made it impossible to follow inconsistent
decisions: British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd.,
[1995]
2 S.C.R. 739 at para 53; Chapman v. Canada (Minister of National Revenue M.N.R.), 2002 FCT 655, 221
F.T.R. 126.
[33]
Following
Dunsmuir, several courts have suggested that in applying the reasonableness
standard, there should be a different approach to the determination of whether
deference is owed to administrative decision makers who differ in their
interpretations of the applicable legal principles. In Abdoulrab
v. Ontario (Labour Relations Board), 2009 ONCA 491, 95
Admin. L.R. (4th) 121 at paragraph 48, while the decision did not
turn on the question, Justice Russell Juriansz of the Ontario Court of Appeal
offered the following observations:
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.
[34]
Justice
Kathryn
Feldman of the same Court expressed similar views in Taub v. Investment
Dealers Association of Canada, 2009 ONCA 628, 311 D.L.R. (4th)
389. She stated, at paragraph 67:
I agree with Juriansz J.A. that it
accords with the rule of law that a public statute that applies equally to all
affected citizens should have a universally accepted interpretation. It follows
that where a statutory tribunal has interpreted its home statute as a matter of
law, the fact that on appeal or judicial review the standard of review is
reasonableness does not change the precedential effect of the decision for the
tribunal. Whether a court has had the opportunity to declare the decision to be
correct according to judicially applicable principles should not affect its precedential
status. As in Abdoulrab, it is not necessary to decide the issue in this
case.
[35]
Justice
Feldman characterized the changing view of the concept of deference in the
following terms at paragraph 24 of her reasons in Taub:
It
has been said that where the standard of review is not correctness, on issues
within its expertise an administrative tribunal has "the right to be
wrong": e.g. Air Canada v. International Assn. of Machinists and
Aerospace Workers, [1978]
O.J. No. 1053 (Div. Ct.), at para. 11. In my view, Dunsmuir has
made it clear that if this was ever true, it no longer is. Where there is a
question that is reviewable on the reasonableness standard, a decision that is
found to be unreasonable will in virtually every case for that reason be wrong.
If a decision deserves deference because of the process by which it was reached
and because the result is a reasonable one, then it will not be wrong. As I
stated above, the administrative law concept of deference is not accorded on
the basis of deference to an exercise of quasi-judicial discretion, but on the
basis of respect for an experienced decision-maker with particular expertise
who has engaged in a process and reached an outcome that has been demonstrated
to warrant that deference.
[36]
These
statements in Abdoulrab and Taub
were cited with approval by the Federal Court of Appeal in Mowat. Mowat
concerned a determination by the Canadian Human Rights Tribunal that it had the
authority to award costs to a successful complainant. The question had not been
answered consistently by the Tribunal and had been the subject of diverse
opinions in the Federal Court. The Court of Appeal found, at paragraphs 47-51,
that the application judge erred in choosing reasonableness as the standard of
review. Because of the public interest mandate of the Tribunal and the public
interest nature of the legislation, the issue was a general question of law of
central importance to the legal system as a whole. It was also one that was
outside the specialized area of the Tribunal’s expertise. Thus, it called for
the application of the correctness standard. Applying that standard and
generally recognized principles of statutory interpretation, the Court of
Appeal found that the Canadian Human Rights Act did not empower the
Tribunal to award costs.
[37]
At
paragraph 45 of Mowat, citing the comments from the Ontario Court of
Appeal decisions reproduced above, Justice Carolyn Layden-Stevenson, for the
Court, noted that:
There is much to be said for the argument
that where there are two conflicting lines of authority interpreting the same
statutory provision, even if each on its own could be found to be reasonable,
it would not be reasonable for a court to uphold both.
But Mowat was not decided on this
basis. The Court of Appeal, applying the correctness standard, found that the
tribunal had erred in its interpretation of the governing statute. As Justice
Layden-Stevenson noted at paragraph 97, quoting from ATCO Gas and Pipelines
Ltd. v. Alberta (Energy and Utilities Board), [2006] 1
S.C.R. 140 at para. 51, the “mandate of the court is to determine and apply the
intention of Parliament without crossing the line between judicial
interpretation and legislative drafting”.
[38]
In
this case, it has not been argued that the citizenship judge’s interpretation
of the legislation calls for the application of the correctness standard and a
finding that the Citizenship Judge’s interpretation was wrong in law. Indeed it
would have been difficult for the applicant to assert that proposition given
Justice Mainville’s remarks in Takla and those of several other judges
of this Court, that a plain reading of the statute supports the physical
presence interpretation.
[39]
I
would have had difficulty finding that the question at issue is one of general
law that is of central importance to the legal system as a whole and outside
the adjudicator’s specialized area of expertise: Dunsmuir, above, at
para. 60. In my view, the combination of an expert tribunal and a question of
law within that tribunal’s expected range of expertise should result in
deference, even in the face of a statutory right of appeal.
[40]
It
was argued in this case that there are several considerations which favour a
finding that the decision was unreasonable. These include the fact that the
transition referred to in Lam, above, has not come to pass as Parliament
has failed to deal with the issue and it is no longer reasonable to adhere to
the strict interpretation. Moreover, the inconsistent interpretations of the
residency requirement used by citizenship judges result in uncertainty in the
application of the law to individual claimants.
[41]
I
agree that these are important considerations and that the reasoning in the obiter
comments in Abdoulrab, Taub and Mowat cited above is
compelling. It is preferable from an administrative law perspective that the
interpretation of provisions in a statute governing the interests of
individuals be consistent. However, is that a question for the Court or for
Parliament to resolve?
[42]
The
reasoning in Takla that the Koo test should be the sole standard
has been endorsed in several subsequent decisions of this Court: Canada
(Minister of Citizenship and Immigration) v. Elzubair, 2010 FC 298; Canada
(Minister of Citizenship and Immigration) v. Cobos, 2010 FC 903; Canada
(Minister of Citizenship and Immigration) v. Salim, 2010 FC 975; Canada
(The Minister of Citizenship and Immigration) v. Emmanuel Manas, 2010 FC
1056; Canada (Ministre de la Citoyenneté & de l’Immigration) c.
Abou-Zahra, 2010 FC 1073; Dedaj v. Canada (Minister of Citizenship and
Immigration),
2010 FC 777; Ghaedi v. Canada (Minister of Citizenship and Immigration)
2011 FC 85.
[43]
The
physical presence interpretation had been applied by the citizenship judges in Manas,
Dedaj and Ghaedi. In Manas and Dedaj that was found
to be unreasonable. In Ghaedi, Justice Robert Barnes reviewed the
decision on the correctness standard. In Cobos, as in Takla, the
citizenship judge had applied the Koo framework. The determinative issue
in those cases was whether the questions had been answered reasonably. In Elzubair,
Salim and Abou-Zahra, it was not clear from the Citizenship Judges’
reasons which test they had chosen to apply.
[44]
In Dachan
v. Canada (Minister of Citizenship and Immigration), 2010 FC 538, Justice
Luc Martineau took note of Takla and Elzubair without making a finding as to whether the
Federal Court should prefer one test over another. Neither party had raised the
question of whether a single consolidated and contextual approach should be
adopted. The issue in Dachan was whether the factual finding that the
applicant had not established her presence in Canada for a minimum of 1095 days was reasonable.
[45]
In
Savarian v. Canada (Minister of
Citizenship and Immigration), 2010 FC 1117, Justice Yvon Pinard noted the
decisions that held that
physical presence for the full 1095 days was not required. In his view, actual
presence in Canada remains the most
relevant and crucial factor to be taken into account for establishing whether
or not a person was "resident" in Canada within the meaning of the provision. To
allow a period of absence longer than the one year in four is contrary to the
sprit of the Act, he considered. Accordingly, Justice Pinard dismissed an
appeal from a citizenship judge’s decision that applied the Pourghasemi
interpretation.
[46]
In
another decision, Shubeilat c. Canada (Ministre de la Citoyenneté et de
l'Immigration), 2010 CF 1260, Justice Michel Shore endorsed the position that it is up to
the citizenship judge to determine the correct test to apply, including the
stricter test of physical presence set out in Pourghasemi. Justice Shore upheld the
reasonableness of the Citizenship Judge’s finding that the applicant had not
been physically present in the country for the required 1095 days.
[47]
Justice
Anne Mactavish also upheld the discretion of a citizenship judge to apply any
of the alternative tests in Cardin v. Canada (Minister of
Citizenship and Immigration), 2011 FC 29 at paragraph 18. In the particular
circumstances of that case, however, she found that it was unreasonable for the
citizenship judge to apply the physical presence standard as the applicant had
already established a deep and long-standing connection to Canada. Justice Mactavish endorsed
the views expressed by Justice Dawson in Lin, above, that this was an
area of the law that cries out for legislative reform.
[48]
I
am unable to find that the underlying decision in this case was unreasonable. It
is apparent from the record that the Citizenship Judge carefully considered the
facts of the application. From his notes to file, it is clear that he took care
in interviewing the applicant to explore her attachment to this country and her
reasons for her absences during the four year period prior to the application.
He wrote thorough reasons for the decision that meet the standard of
sufficiency. But for the applicant’s preference for an interpretation of the
residency requirement that is more favourable to her personal circumstances, the
merits of the decision have not been questioned. Moreover, this is not a case
where I would find that residency had been established in the particular
factual circumstances and the application of the physical presence test was
unreasonable, as in Cardin, above.
[49]
In
the interests 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 decisions 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, above, declined to apply the principle in this
context, albeit in reference to the Lam 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 that 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 the
inconsistent application of the law is unfortunate, it can not be said that every
example of that 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.
[51]
The
appeal is dismissed. In
the circumstances, while costs were requested I do not consider it appropriate
to award them.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the appeal from
the decision of a Citizenship Judge denying the applicant's application for
citizenship under paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985,
c. C-29, is dismissed. No costs are awarded.
“Richard
G. Mosley”
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