Date: 201103218
Docket: T-1445-10
Citation: 2011 FC 328
Ottawa, Ontario, March 18,
2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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HANI HASAN EL-KHADER
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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
I. Background
[1]
The
Applicant, Mr. Hani Hasan El-Khader, was granted permanent residence in Canada on July 24, 2002.
Since landing, he has worked outside of Canada for lengthy
periods of time. The Applicant submitted his application for citizenship on
January 7, 2008, acknowledging that he was physically present in Canada for only 925
days in the four years immediately preceding his application. With his
application and during the course of two interviews, he submitted extensive
information and materials that related to his “establishment” in Canada. In a
decision dated August 17, 2010, the Citizenship Judge concluded that the
Applicant had not met the requirement for residency under s. 5(1)(c) of
the Citizenship Act, RSC 1985, c C-29 [the Citizenship Act]. The Citizenship Judge
stated in his decision that he relied on the analytical test of Justice Muldoon
in Re Pourghasemi (1993), 62 FTR 122, 19 Imm LR (2d) 259 [Re
Pourghasemi], where it was determined that a potential citizen must
establish physical presence in Canada for a total of 1,095 days during the four-year
period preceding the application, pursuant to s. 5(1)(c) of the Citizenship
Act.
[2]
The
Applicant is appealing the Citizenship Judge’s decision pursuant to section
14(5) of the Citizenship Act. Such appeals proceed by way of application
based on the record before the citizenship judge and are governed by the Federal
Courts Rules, SOR/98-106 pertaining to applications (Rule 300 (c); Canada (Minister of
Citizenship and Immigration) v Wang, 2009 FC 1290, 87 Imm LR (3d) 184). There are
no further appeals from decisions of this Court. If the matter is not sent back
for re-determination, an unsuccessful applicant who meets the statutory
criteria may reapply.
II. Issues
[3]
The
key issue before me is whether the Citizenship Judge erred by relying on the
physical presence test rather than carrying out a qualitative analysis of the
Applicant’s establishment in Canada. Stated differently, did the Citizenship
Judge err by determining that the residence requirement in s. 5(1)(c) of the Citizenship
Act is only met when an applicant is physically present in Canada for the required number
of days? The Applicant argues that, since the decision of the Federal Court in Canada (Minister of Citizenship and Immigration) v Takla, 2009 FC
1120, 359 FTR. 248 (Eng) [Takla], there is only one legally correct
test, that being the qualitative analysis described in Re Koo, [1993] 1 FC 286, 19
Imm LR (2d) 1 [Re Koo].
[4]
In
the alternative, the Applicant argues that the Citizenship Judge provided
inadequate reasons for his decision.
III. Legislative
Provision
[5]
Section
5(1)(c) of the Citizenship Act states the following:
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5. (1) The
Minister shall grant citizenship to any person who
. . .
(c) is
a permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act, and has, within the four years immediately
preceding the date of his or her application, accumulated at least three
years of residence in Canada calculated in the following manner:
(i) for
every day during which the person was resident in Canada before his lawful
admission to Canada for permanent residence the person shall be deemed to
have accumulated one-half of a day of residence, and
(ii) for
every day during which the person was resident in Canada after his lawful
admission to Canada for permanent residence the person shall be deemed to
have accumulated one day of residence;
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5. (1) Le ministre attribue la citoyenneté à toute personne qui, à
la fois :
…
c) est un résident
permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la
protection des réfugiés et a, dans les quatre ans qui ont précédé la date
de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée
de sa résidence étant calculée de la manière suivante :
(i) un demi-jour
pour chaque jour de résidence au Canada avant son admission à titre de
résident permanent,
(ii) un jour pour
chaque jour de résidence au Canada après son admission à titre de résident
permanent;
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[6]
There
is no definition of “resident” or “residence” under the Citizenship Act.
IV. Standard of Review
[7]
It
has been consistently held that the standard of review of a Citizenship Judge’s
decision is that of reasonableness (see, for example, Hao v Canada (Minister of
Citizenship and Immigration), 2011 FC 46, [2011] FCJ No 143 (QL) at
para 11 [Hao]; Abbas v MCI, 2011 FC 145, [2011] FCJ No 167 (QL) [Abbas].
[8]
In
this case, the decision of the Citizenship Judge consists of two components.
Firstly, the Judge was required to make a purely factual determination of the
number of days that the Applicant was physically present in Canada during the
four-year period preceding the application. The Applicant acknowledges that he
was physically present in Canada for only 925 days during the relevant
period. Secondly, the Citizenship Judge’s analysis involved a statutory
interpretation of s. 5(1)(c) of the Citizenship Act. As we know, the
Judge interpreted this provision to require the Applicant to be physically
present in Canada for at least
1,095 days. While this is a legal question, it does not automatically follow
that the standard of review is correctness.
[9]
In
recent jurisprudence, particularly in both Celgene Corporation v Canada (Attorney
General of Canada), 2011 SCC 1, 89 CPR (4th) 1 at paragraph 34 and Smith
v Alliance Pipeline Ltd., 2011 SCC 7, [2011] SCJ No 7 (QL), at paragraphs
37-39 [Alliance Pipeline], the Supreme Court has reinforced the concept
of deference in connection with a tribunal’s interpretation of its home
statute. The remarks of the Supreme Court in Alliance Pipeline, at paragraphs
37-39, are of particular relevance to the issue before me:
Characterizing
the issue before the reviewing judge as a question of law is of no greater
assistance to Alliance, since a tribunal's interpretation of its home statute,
the issue here, normally attracts the standard of reasonableness (Dunsmuir,
at para. 54), except where the question raised is constitutional, of central
importance to the legal system, or where it demarcates the tribunal's authority
from that of another specialized tribunal -- which in this instance was clearly
not the case.
Finally,
on this branch of the matter, Alliance argues that adoption of the reasonableness
standard would offend the rule of law by insulating from review contradictory
decisions by Arbitration Committees as to the proper interpretation of s. 99(1)
of the NEBA. I am unable to share the respondent's concern. In Dunsmuir,
the Court stated that questions of law that are not of central importance to
the legal system "may be compatible with a reasonableness standard"
(para. 55), and added that "[t]here is nothing unprincipled in the fact
that some questions of law will be decided on [this] basis" (para. 56; see
also Toronto (City) v. C.U.P.E., at para. 71).
Indeed,
the standard of reasonableness, even prior to Dunsmuir, has always been
"based on the idea that there might be multiple valid interpretations of a
statutory provision or answers to a legal dispute" such that "courts
ought not to interfere where the tribunal's decision is rationally
supported" (Dunsmuir, at para. 41).
[10]
The
Citizenship Judge’s jurisdiction to determine citizenship applications is
contemplated by the Citizenship Act. Moreover, in this case, the
Citizenship Judge was interpreting his “home statute” when he interpreted the
words “resident” and “residence” in s. 5(1)(c) to require the Applicant to be
physically present in Canada for 1,095 days during the relevant four-year
period. The question raised is not constitutional; nor does it demarcate the
tribunal’s authority from that of another specialized tribunal. The Applicant
does not submit that the statutory interpretation of s. 5(1)(c) is one of
“central importance to the legal system”. Accordingly, I conclude that the
standard of review applicable to the interpretation of s. 5(1)(c) by a citizenship
judge is that of reasonableness. Stated differently, it is not for the
reviewing judge to substitute his or her own interpretation of the legislative
provision; rather the reviewing judge must determine whether the interpretation
relied on by a citizenship judge falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 [Dunsmuir]).
V. Analysis
[11]
The
Federal Court has, over the years, endorsed three different approaches to the
question of how to interpret the words “resident” and “residence” in the
legislation. Most recently, this judicial history was described in considerable
detail in each of the decisions in Takla, above, and Hao, above.
[12]
Briefly
stated, the three lines of jurisprudence fall into two categories: the
“quantitative approach” and the “qualitative approach.” The quantitative
approach is encompassed in the Re Pourghasemi test, applied by the
Citizenship Judge in this case, which asks whether the applicant has been physically
present in Canada for 1,095 days during the four-year period
preceding the application for citizenship. This has been referred to as the
“physical presence” test.
[13]
The
qualitative approach was articulated in Re Papadogiorgakis, [1978] 2 FC 208, 88
DLR (3d) 243 and refined in Re Koo, above. The test in Re Koo,
as first utilized by Justice Reed, requires a citizenship judge to analyze
six factors to determine whether an applicant has met the requirement of
residence by his or her “centralized mode of existence”, even where an
applicant falls short of the 1,095 days.
[14]
Justice
Lufty (as he was then) in Lam v Canada (Minister of
Citizenship and Immigration)(1999), 164 FTR 177, [1999] FCJ No 410
(QL)(FCTD) noted the divergence in the jurisprudence. In Lam, he
concluded that if a citizenship judge adopted any one of the three conflicting
lines of jurisprudence, and if the facts of the case were properly applied to
the principles of that approach, the citizenship judge’s decision should not be
set aside.
[15]
For
the next 12 years, the acceptance of either the quantitative or qualitative
approach was consistently upheld by the Federal Court. Parties coming before
this Court on appeal understood that a citizenship judge was free to apply
either test. The situation was not ideal as citizenship applicants could never
be certain of which test would be applied to their case. However, legislative
amendments to the Citizenship Act could have clarified this situation.
This has not been done by Parliament.
[16]
In
2009, the decision of Justice Mainville (then a judge of this Court) in Takla, above, embraced
the qualitative approach. In Takla, Justice Mainville stated at
paragraphs 46-48:
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.
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 be 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,
[17]
Following
Takla, a number of Federal Court judges have endorsed Justice
Mainville’s adoption of the Re Koo test as the only analysis that should be applied
pursuant to s. 5(1)(c) of the Citizenship Act (see, for example, Canada
(Minister of Citizenship & Immigration) v Salim, 2010 FC 975, 92 Imm.
LR (3d) 196; Canada (Minister of Citizenship & Immigration) v Alonso
Cobos, 2010 FC 903, 92 Imm LR (3d) 61; Canada (Ministre de la
Citoyenneté & de l'Immigration) c Abou-Zahra, 2010 FC 1073, [2010] FCJ
No 1326 (QL); Canada (Minister of Citizenship & Immigration) v Elzubair,
2010 FC 298, [2010] FCJ No 330 (QL); Khan v Canada (Minister of Citizenship
& Immigration), 2011 FC 1178).
[18]
However,
since that decision was released, a second line of equally compelling
jurisprudence has emerged (see, for example, Abbas, above; Sarvarian
v Canada (Minister of
Citizenship and Immigration), 2010 FC 1117, [2010] FCJ No 1433 (QL)). The
judges in these cases have continued to accept either the qualitative or
quantitative interpretation of s. 5(1)(c) as reasonable.
[19]
The
rationale behind this second line of jurisprudence is underscored by the
Supreme Court of Canada’s remarks in Celgene, above, and Alliance
Pipeline, above. In both of these cases, the Supreme Court reinforced the
principle that, the standard of reasonableness, even prior to Dunsmuir,
has always been “based on the idea that there might be multiple valid
interpretations of a statutory provision or answers to a legal dispute” such
that “courts ought not to interfere where the tribunal’s decision is rationally
supported” (Dunsmuir, at para 41; Alliance Pipeline, at paras
38-39).
[20]
The
Applicant rests his case on an assertion that the Citizenship Judge erred in
law by not following the test articulated in Takla, above. This argument
can only be correct if the decision in Takla overruled the decision in Lam.
In my view, the conclusion of a judge of the Federal Court in Takla did
not and could not overrule the conclusion of a judge of the Federal Court in Lam.
As a consequence, the law remains that, provided a citizenship judge correctly adopts
and applies either test, the decision ought to stand.
[21]
This
conclusion is supported by the very words of Justice Mainville who
acknowledges, at paragraph 47 of Takla, that “the test of physical
presence for three years . . . is consistent with the wording of the Act”. The physical
presence test provides a reasonable interpretation of the words “resident” and
“residence” in the legislative provision. In other words, the decision by a
citizenship judge to interpret s. 5(1)(c) of the Citizenship Act to
require physical presence is rationally supported by the words of the statute and
by a lengthy line of jurisprudence from this Court. The Citizenship Judge did
not err as alleged by the Applicant.
[22]
The
Applicant submits that, as a matter of judicial comity, I should follow my
former colleague, Justice Mainville, and those who have subsequently rejected
the physical presence test. In response, I would echo the reasoning of Justice
Mosley in Hao, above, at paragraphs 49 and 50:
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.
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.
[23]
In
sum, the application of the physical presence test by the Citizenship Judge was
reasonable.
[24]
It
follows that the Applicant’s allegation that the Citizenship Judge’s reasons
were inadequate must also fail. The decision clearly sets out that the
Citizenship Judge was following the decision in Re Pourghasemi, above,
requiring physical presence pursuant to 5(1)(c) of the Citizenship Act.
On that interpretation, the only question to be determined by the Citizenship
Judge was whether the Applicant was physically present in Canada for 1,095 days. The
Applicant acknowledges that he was short of the required number of days. In
light of the test applied by the Citizenship Judge, the documentary evidence
was irrelevant. The Judge did not err by failing to refer to the voluminous
documentary evidence submitted by the Applicant.
[25]
For
these reasons, the appeal will be dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the appeal of the
Citizenship Judge’s decision is dismissed.
“Judith
A. Snider”
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