Date: 20110318
Docket: T-1237-10
Citation: 2011 FC 332
Ottawa,
Ontario, March 18,
2011
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
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ROBABEH ALINAGHIZADEH
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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]
Mrs.
Robabeh Alinaghizadeh contests the validity of the decision of a Citizenship
Judge denying her application for citizenship pursuant to subsection 14(5) of
the Citizenship Act, RS 1985, c C-29 (the Act). Like
many recent decisions, this application raises the issue of which test should
be applied to establish residency under paragraph 5(1)(c) of the Act.
I. Background
[2]
The
Applicant is a fifty-seven year old citizen of Iran. She came
to Canada on July 17,
1992 and became a permanent resident on that date. Her husband, Mr. Seyed
Hossein Montazemi-Safari and their three children have all obtained Canadian
citizenship years ago.
[3]
For
reasons unexplained, the Applicant waited many years to apply for Canadian
citizenship. She applied for Canadian citizenship on September 7, 2006 and at
that time alleged that she had been outside Canada for 166 days (allegedly five
trips) out of the four years preceding her application (September 7, 2002 to
September 7, 2006).
[4]
In
her Residence Questionnaire dated April 4, 2007, she alleged that she was
outside Canada for 164 days
(still five trips), and she provided some supporting documentation.
[5]
She
was issued a Notice to Appear on February 9, 2010 and effectively appeared
before a Citizenship Judge on March 2, 2010. At the said interview, although
this is disputed, she was accompanied by her son-in-law (Hossien
Montazemi-Safari) who, according to the Respondent, acted as her interpreter.
[6]
At
the conclusion of the hearing, the Citizenship Judge requested that the
Applicant provide additional supporting documents and complete another
Residence Questionnaire. It appears from a handwritten note on pages 19 and 32
of the Respondent’s Record that the Applicant understood that she had to
establish her physical presence in Canada albeit she appears to have
misunderstood the number of days required pursuant to paragraph 5(1)(c)
of the Act (900 days instead of 1095).
[7]
On
March 17, 2010 she provided additional information and in her Residence
Questionnaire she claimed that she was only absent from Canada for 142 days
(four trips).
[8]
On
June 1, 2010, the Applicant was informed by letter that her application for
citizenship had been denied because she did not meet the requirements of
paragraph 5(1)(c) of the Act (the relevant provisions of the Act
are reproduced in Annex A). The letter also mentions, among other things,
that at the hearing the Citizenship Judge had requested that she provide
additional documents because he was not satisfied by those already submitted,
and that unfortunately these documents were not found to be sufficient to meet
her burden of establishing the residence requirement.
II. Issues
[9]
The
Applicant raises three issues:
i.
The
decision maker breached procedural fairness by refusing her the right to be
assisted by a family member, who would act as an interpreter during the
hearing.
ii.
The
decision maker breached his duty to provide the Applicant with proper and
sufficient reasons, particularly because he failed to consider the totality of
the documentation submitted by the Applicant.
iii.
The
decision maker erred in failing to apply the qualitative test set out in Koo (Re), [1993] 1 FC 286.
[10]
At
the hearing, the Applicant’s counsel attempted to raise a new argument,
specifically, that even if the Citizenship Judge was entitled to apply the
physical presence test set out in Pourghasemi (Re), (1993) 62 FTR 122,
Imm LR (2d) 259, his decision is unreasonable given that the Applicant had
established that she was in Canada more than 1095 days. The Applicant also
sought leave to testify viva voce on the issue of the lack of an
interpreter. The Respondent rightly raised an objection since neither this
argument, nor the evidence alluded to by the Applicant’s counsel at the
beginning of the hearing was included in the record. Both requests were refused
as there was no explanation as to why the Applicant failed to seek leave to
file a reply affidavit or additional submission. Then, the Applicant verbally
requested an adjournment and the right to file new evidence and an amended
Application Record. This request was denied for various reasons, including that
no explanation was given for the failure to raise these issues earlier.
III. Analysis
[11]
At
the hearing the Applicant’s counsel acknowledged that there was absolutely no
evidence in support of the first issue, for the Applicant’s affidavit does not
mention anything about the alleged refusal and the lack of interpretation.
Moreover, the Respondent relies on the Interpreter’s oath signed by the
Applicant’s son-in-law at the beginning of the interview and on the notes of
the Citizenship Judge which state that the Applicant’s son-in-law acted as an
interpreter because she could not communicate correctly in either official
language (free translation of notes, p. 12 of the Respondent’s Record).
Nevertheless, the Applicant’s counsel still insisted that the Court consider
his argument.
[12]
Obviously
in the circumstances, there is not much to say except that the Applicant has
failed to establish the factual background in support of this alleged breach of
procedural fairness. In fact, it appears that the Applicant did indeed have
the interpretation assistance of Mr. Montazemi-Safari.
[13]
With
respect to the second issue, the Applicant relies on subsection 14(3) of the Act
which mandates that the “judge shall forthwith notify the applicant of his
decision, of the reasons therefor and of the right to appeal.”
[14]
It
is not disputed that the Applicant never requested further reasons from the
Citizenship Judge after receiving the letter of denial, dated June 1, 2010. It
also appears from the Respondent’s Record that on April 28, 2010, the
Citizenship Judge wrote detailed notes supporting his decision in which he reviews
in sixteen paragraphs all the documentation provided by the Applicant. In the
said notes, the Citizenship Judge indicates that the Applicant had to establish
on the balance of probabilities that she meets the criteria set out in the Act
particularly paragraph 5(1)(c). He also mentions that the Applicant had
not provided sufficient documentation to support her declarations of residence
in Canada for the
applicable period. She had not submitted the totality of documents he had
requested during the March 2, 2010 interview. He adds that overall, the
evidence remained insufficient and that many questions raised were still
unanswered and weighed heavily on the credibility of Mrs. Alinaghizadeh.
[15]
The
Citizenship Judge then reiterates that he has not been convinced on a balance
of probabilities that the Applicant really resided in Canada for the 1318 days
she declared in her last Residence Questionnaire without concrete evidence,
particularly in respect of the dates of absence and other errors in her previous
declarations for which no explanation or little explanation was provided.
Finally, he notes that “considering the number of days where the residence of
Mrs. Alinaghizadeh is still approximate, if one does not take into
consideration the overall period not truly justified, Mrs. Alinaghizadeh does
not meet the conditions for the grant of citizenship under paragraph 5(1)(c)
of the Act” (free translation of last paragraph on p. 14 of the
Respondent’s Record).
[16]
The
Applicant had a copy of those notes well before she filed her Application
Record.
[17]
Like
any other breach of procedural fairness, the question of whether or not the
Citizenship Judge gave adequate reasons is reviewable on a standard of
correctness (Dunsmuir v New Brunswick, 2008 SCC 9; Canada (Minister
of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43).
[18]
In
Vancouver International Airport Authority v Public Service Alliance of
Canada, 2010 FCA 158 (recently followed in Holmes v Canada (Public
Safety and Emergency Preparedness), 2011 FC 112 at para 43), the Federal
Court of Appeal reviewed the caselaw on the adequacy of reasons since VIA
Rail Canada v National Transportation Agency, [2001] 2 FC 25 (CA) to
distill the fundamental principles and the purposes involved. There is no
doubt that the letter of June 1, 2010 read together with the notes of April 28,
2010 meets all the requirements described by the Federal Court of Appeal
(paragraphs 16-17). As mentioned by the Court (para 17(a)), the written reasons
given form part of a broader context and may be amplified and clarified by
extraneous material such as the notes of April 28, 2010.
[19]
However,
in my view, the Citizenship Judge should have sent a copy of his notes with the
letter of June 1, 2010 for one cannot circulate two sets of reasons for the
same decision – notes sent to the Minister with the Notice to the Minister form
and the letter sent to the Applicant. That said, the Applicant did receive a
copy of these notes on or about August 13, 2010 when the Certified Record was
transmitted to her in accordance with Rule 318. She had ample time to consider these
notes before she filed her Application Record in November 2010. She knows how
the documentation she provided was dealt with by the decision maker.
[20]
In
the present circumstances, considering among other things that the Applicant
duly filed her appeal and that she and the Court now have sufficient
information to assess whether the decision meets the standard of
reasonableness, including the need to provide justification, transparency and
intelligibility, the Court is not willing to quash the decision on the basis
that these notes were not attached to the June 1, 2010 letter.
[21]
As
in Dachan v Canada (Citizenship and
Immigration), 2010 FC 538 at para 13, the Court is satisfied that this
“technical” breach of procedural fairness simply has no possible material
effect on the decision, on the Applicant’s resolve to appeal it or on her
ability to contest it.
[22]
Thus,
the Court will proceed to examine the reasonableness of the decision based on
the reasons set out in the aforementioned letter and the notes of April 28,
2010.
[23]
In
respect of the transparency, intelligibility and justification aspect of the
reasonableness standard, the Court cannot agree with the Applicant that the
Citizenship Judge does not clearly indicate which test he used to assess
whether she met the requirements of paragraph 5(1)(c) of the Act.
[24]
In
fact, it was so clear at all times that he used the quantitative test of
physical presence in Canada that the Applicant contested his right to apply
such test instead of the qualitative test set out in Koo (Re), above,
and Papadogiorgakis (Re), [1978] 2 FC 208 (TD). The Applicant also
argues that he should have applied the Koo (Re) test once he came to the
conclusion that she did not meet the quantitative test. Moreover, as mentioned
earlier, it appears that after her interview, the Applicant knew that she had
to establish her physical presence in Canada (Respondent’s Record,
p. 19 and 32).
[25]
Turning
to the third and final issue which is really the core of this proceeding, the
Court has examined very closely all the authorities submitted by the parties,
in light of the different views recently expressed in Canada (Citizenship
and Immigration) v Takla, 2009 FC 1120 and in Hao v Canada (Citizenship and
Immigration), 2011 FC 46.
[26]
In
Takla, as has been done by many judges for more than a decade, Justice
Robert Mainville (as he then was) expressed the Court’s frustration that the
use of different tests, to assess whether or not a permanent resident meets the
residence requirement set out in the Act, creates what another Judge
described as an intolerable situation. In effect, the privilege sought
(citizenship) may be granted to one person while denied to another in identical
circumstances, depending on which of two or three “reasonable” interpretations
of the Act is chosen by the Citizenship Judge reviewing the file.
[27]
In
an obvious attempt to find a solution to the aforementioned situation, Justice
Mainville, after essentially stating that, in his view, the proper and correct
interpretation of paragraph 5(1)(c) of the Act requires physical
presence in Canada for at least 1095 days, went on to conclude that the test in
Koo (Re) (presumed to be the dominant test) should
nevertheless be the sole standard used to ensure uniformity of the law.
[28]
However,
it is now clear that Justice Mainville’s attempt to redress the situation has
not been successful, for in my view it is simply not one that can be solved by
this Court alone. This is especially so when one considers, as Justice Richard
Mosley did in Hao, above, the various decisions issued since Takla,
above, not to mention those issued since Hao.
[29]
The
principle of judicial comity is not useful or applicable here given the
diversity in the reasoning adopted by my colleagues (including that many
comments were obiters) and the fact that after Takla and possibly
in response to it, a new Bill to amend the Citizenship Act (Bill C-37)
was tabled on June 10, 2010. In its current version, this Bill makes it
absolutely clear that a permanent resident must be physically present in Canada during the
period set out in paragraph 5(1)(c). Is this a confirmation that this is what
Parliament had intended all along?
[30]
That
said, I find the reasoning of Justice Mosley particularly compelling. Like in Hao,
above, the parties were agreed that the Court should review this issue
on the standard of reasonableness. Similar to Justice Mosley in Hao (at
para 39), I would have had difficulty finding that this question should be
reviewed on a correctness standard. Had it been so, I would have had to
request more detailed argumentation. In effect, the exercise of embarking on a
full and detailed interpretation of this provision in accordance with the
recognized modern approach to statutory interpretation may be warranted given
that it appears to have not been done for some time.
[31]
Turning
back to the reasonableness of the decision before me, it is worth mentioning
that in Smith v Alliance Pipeline, 2011 SCC 7,
the Supreme Court of Canada clearly reminded reviewing courts that:
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).
[32]
This
was our highest Court’s answer to Alliance Pipeline’s argument that the
“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 [National Energy Board
Act, RSC 1985, c N-7]” which was under review in that case
(para 38).
[33]
Like
in Hao, above, this Court has not been convinced that it is unreasonable
for the Citizenship Judge to have applied the physical presence or so-called
quantitative test to determine whether Mrs. Alinaghizadeh had established on a
balance of probabilities that she meets the requirements of paragraph 5(1)(c)
of the Act. Not only does the Judge’s decision in that respect fall
within the range of possible, acceptable interpretations of paragraph 5(1)(c),
it may well be the only correct one. Thus, the Court cannot agree with the
Applicant that the decision maker made a reviewable error in failing to apply
the Koo (Re) test.
[34]
As
stated by Justice Eleanor Dawson (as she then was) many years ago in Lin v Canada (Minister of
Citizenship and Immigration), 2002 FCT 346 at para 22, the incertitude
in the law “can only be remedied by Parliament clearly expressing its will with
respect to the residency requirement.”
[35]
As
noted, this Court does not have to determine whether it was unreasonable for
the Citizenship Judge to conclude that the applicant had not established that
she was present for 1095 days. Thus, I will simply say that in light of the
findings in respect of the quality of the evidence or lack thereof and the
applicant’s credibility, it would have been difficult to justify the Court’s
intervention.
[36]
Mrs.
Robabeh Alinaghizadeh can make a new application at any time. She now knows
how important it is for her to provide sufficient documentation to support such
an application. She knows that she must provide probative evidence that will
place her in Canada during the
whole period required.
With a new application, she will not have to face the hurdle of a stolen
passport (before October 8, 2003). She will know that she should spare no
efforts (money does not appear to be an issue here) to obtain monthly records
for the whole period examined as opposed to, for example, a simple letter from
her bank stating that she has been a client since 1992 or records covering a
very limited period. I have little doubt that if she puts her mind to it and
ensures that she takes no more than 90 days of holidays outside of Canada to visit her
friends and family per year during the applicable period, she will obtain her
Canadian citizenship like the other members of her family.
[37]
Considering
the legal issue (third issue) raised in this application, no costs shall be
awarded.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application is dismissed
without costs.
“Johanne
Gauthier”
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