Date: 20110509
Docket: T-1512-10
Citation: 2011 FC 533
Ottawa, Ontario, May 9, 2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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HOSAM ELDEEN EL OCLA
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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]
This
is an appeal by Dr. Hosam Eldeen El Ocla brought under s 14(5) of the Citizenship Act, RSC 1985, c C-29 (Citizenship
Act). Dr. El Ocla challenges the decision of the citizenship judge dated
July 22, 2010 by which his application for Canadian citizenship was rejected. This
decision was based on the ground that Dr. El Ocla had not met the
test for residency required by ss 5(1)(c) of the Citizenship Act.
Background
[2]
Dr. El Ocla
came to Canada from Egypt in 2001 and
commenced employment as an Assistant Professor in the Department of Computer
Science, Computer and Electrical Engineering at Lakehead University (Lakehead) in Thunder Bay. He became a permanent Canadian
resident in 2006.
[3]
Dr. El Ocla
is now a fully tenured member of the teaching faculty at Lakehead holding the
position of Associate Professor.
[4]
Dr. El Ocla’s
curriculum vitae discloses that he is a highly regarded researcher and teacher
at Lakehead. He is widely published and collaborates on an international level
with several professional colleagues. He is also frequently invited to
participate in international symposia and is well-known in his field of
specialization. Dr. El Ocla has been a recipient of ongoing research
grants from the Natural Sciences and Engineering Research Council of Canada
(NSERC) mainly for the study of radar detection systems. These NSERC grants
are contingent on his continued research and this has required him to be
frequently absent from Canada to participate in
collaborative work, mainly in Egypt and Japan.
[5]
Dr. El Ocla
is well established in Thunder
Bay where he
makes his home.
[6]
Dr. El Ocla
applied for Canadian citizenship on October 24, 2008. He acknowledged in his
application that he had been physically present in Canada for only 996 days of the statutory
threshold of 1095 days but counted on the presiding citizenship judge to
consider whether he had, nevertheless, established a constructive or
qualitative Canadian residency.
[7]
The citizenship
judge declined to consider whether Dr. El Ocla had centralized his
mode of living in Canada (a qualitative standard) and
instead applied the test of residency requiring a physical presence in Canada of no less than 1095 days in
the four years preceding the application. Because he fell 99 days short of the
three year physical presence requirement, his application was rejected. It is
from this decision that this appeal arises.
Issues
[8]
What
is the appropriate standard of review for the substantive issue raised on this
appeal?
[9]
Did
the citizenship judge err by strictly applying the physical presence test for
residency to the exclusion of the qualitative residency test?
Analysis
[10]
There
continues to be a disagreement in this Court with respect to the standard of
review that applies to appeals from the decisions of citizenship judges
concerning the test for residency under ss 5(1)(c) of the Citizenship Act. In Ghaedi v Canada, 2011
FC 85 I applied the standard of correctness, but more recently several of my
colleagues have, in similar circumstances, applied the deferential standard of
reasonableness: see Hao v Canada (MCI), 2011 FC 46 , Alinaghizadeh v
Canada (MCI), 2011 FC 332, and El-Khader v Canada (MCI), 2011 FC 328.
[11]
In Canada v Takla, 2009 FC 1120, 359 FTR
248. Justice Robert Mainville also adopted the standard of
reasonableness but he did so in the context of the application of the evidence
to the legal test for residency established by Re Koo, [1993] 1 FC 286,
58 FTR 27. The issue under review in Takla was, accordingly, one of
mixed fact and law where the standard of reasonableness was clearly applicable.
Similarly, most of the decisions that are cited in Takla in support of the
reasonableness standard of review, such as Chen v Canada, 2006 FC 85, 145
ACWS (3d) 770, Canada v Ryan, 2009 FC 1159, Zhao v Canada, 2006
FC 1536, 306 FTR 206, Rizvi v Canada, 2005 FC 1641, 51 Imm LR (3d) 146, Morales
v Canada, 2005 FC 778, 45 Imm LR (3d) 284, Xu v Canada, 2005 FC 700,
139 ACWS (3d) 433, Zeng v Canada, 2004 FC 1752, 136 ACWS (3d) 15 and Canada
v Fu, 2004 FC 60, 128 ACWS (3d) 1074, apply the reasonableness standard to
what was characterized as an issue of mixed fact and law. Indeed, in most of
this Court’s jurisprudence, appeals of this nature have involved challenges to a
citizenship judge’s application of the predominant qualitative test for
residency described in Re Koo, above. In other words, the concern was
with the application of evidence to the Re Koo factors.
[12]
The
above authorities and decisions like them are to my mind distinguishable from
cases such as the one at bar which involve a citizenship judge’s selection of
the physical presence test for residency to the exclusion of the Re Koo
factors. The issue of whether this is the proper test for residency under ss
5(1)(c) of the Citizenship
Act is a
threshold question of law that can and should be isolated from its factual
surroundings. This is a distinction that was well described by Justice Marshall Rothstein
in the following passage from Canwell Enviro-Industries Ltd. v Baker
Petrolite Corp., 2002 FCA 158, [2003] 1 FC 49 at paras 51 and 52:
[51] Where,
however, on a question of mixed fact and law it is possible to extricate the
legal question from the factual and determine that a legal error has been made,
the standard of review will be correctness. At paragraph 27 of Housen, supra,
Iacobucci and Major JJ. state:
In
Southam, supra, at paragraph 39, this Court illustrated how an error on
a question of mixed fact and law can amount to a pure error of law subject to
the correctness standard
[...]
(i) if a decision-maker says that the correct test requires him or her to
consider A, B, C, and D, but in fact the decision-maker considers only A, B,
and C, then the outcome is as if he or she had applied a law that required
consideration of only A, B, and C. If the correct test requires him or her
to consider D as well, then the decision-maker has in effect applied the wrong
law, and so has made an error of law.
[52] Mischaracterizing
the proper legal test results in the application of the correctness standard to
the factual conclusions reached by the Trial Judge. At paragraph 35, Iacobucci
and Major JJ. state:
This
mischaracterization of the proper legal test (the legal requirements to be a "directing
mind") infected or tainted the lower courts' factual conclusion that
Captain Kelch was part of the directing mind. As this erroneous finding can be
traced to an error in law, less deference was required and the applicable
standard was one of correctness.
…
[Emphasis added]
[13]
In Dedaj v Canada,
2010 FC 777, 90 Imm LR (3d) 138, Justice James O’Reilly stated that the Citizenship
Court had an obligation to apply the test for residency recognized in Re Koo,
above, a test he fairly described as representing the “prevalent trend” in the
jurisprudence. He also found that the strict application of the physical
presence test constituted an error of law reviewable on the standard of
correctness: also see Lin v Canada (MCI), 2002 FCT 346, 21 Imm LR (3d) 104 at paras 9 and 19.
I agree with Justice O’Reilly and I would add the following points to his
thoughtful analysis.
[14]
The idea that there
are two, or perhaps three, distinct tests for residency to be found in ss 5(1)(c)
of the Citizenship Act carries with it the implicit adoption of a
correctness standard. This is because it acknowledges that there are finite
options available to a citizenship judge and that other reasonable
interpretations are unavailable. Presumably the application of a true reasonableness
standard to the application of ss 5(1)(c) would recognize other possible
approaches or, perhaps, even a hybrid approach. I would note that this Court
has consistently rejected as an error of law the mixing by the Citizenship
Court of the previously recognized tests for residency without any apparent assessment
of the reasonableness of the approach taken.
[15]
In
drafting ss 5(1)(c)of the Citizenship
Act – a
discrete requirement for residency upon which the conferral of citizenship
rests – Parliament could not have intended that it be open to a variety of optional
interpretations. This provision is not at all a similar to the provision under
consideration in Smith v Alliance Pipeline Ltd., 2011 SCC 7 where
the Supreme Court of Canada was able to identify a Parliamentary intent that
the decision-maker (a tribunal with recognized and specialized expertise) be
endowed with the authority to decide the nature and amount of an award of
costs. There, the decision-maker was said to have had a wide margin of discretion,
which was evidenced by the legislative direction that an arbitration committee
could award costs it felt were “reasonably incurred”. It was apparent to the
Court in Smith that this costs provision was left open to interpretation
to allow the decision-maker to accommodate for an array of potentially
unpredictable circumstances but with an underlying purpose of achieving full
indemnity in the context of an expropriation.
[16]
In contrast, it seems
incongruous that an obvious Parliamentary intent that the ss 5(1)(c)
residency requirement ought to have one meaning should be defeated by an inference
that Parliament also intended that deference be extended to the a citizenship
judge (a non-expert tribunal) on final appeals to the Federal Court on issues of
law, thus leading to inconsistent outcomes in indistinguishable cases. Taken to its logical
conclusion, the idea that statutory provisions such as the one applied here are
open to a variety of “reasonable” interpretations would lead to administrative
chaos and give rise to rampant inequity in a variety of decision-making
contexts.
[17]
To adopt a deferential
standard for the type of question raised in Smith, above, and not to
apply deference to the question presented in this case is, to my thinking, consistent
with the standard of review analysis required by Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190: that is to say that, when conducting a standard of
review analysis, a reviewing court must consider, inter alia, the
expertise of the tribunal and the precise nature of the question under review.
[18]
Notwithstanding
the considered views of my colleagues who have decided this issue differently,
I remain of the view that there can only be one recognized test for residency
under ss 5(1)(c) of the Citizenship Act.
[19]
As
I said in Ghaedi, above, a citizenship judge must apply the test for
residency that was recognized in Re Koo, above, in cases where an
applicant like Dr. El Ocla
has not been physically present in Canada
for 1095 days during the preceding four years but presents evidence that he has
centralized his mode of living here. Where, as in this case, a citizenship
judge applies only the physical presence test, he or she commits an error of
law reviewable on the basis of correctness.
[20]
It is
simply not an acceptable or tolerable situation that some applicants with
perhaps less deserving claims to Canadian citizenship than
Dr. El Ocla are successful because they have the good fortune to
appear before a citizenship judge who chooses to apply the qualitative test for
residency. Although many have said that this is a problem that can best be
solved by Parliament, that is a solution that has not been forthcoming for more
than 30 years and the suggestion is of scant comfort to people like
Dr. El Ocla who are the victims of a lack of legislative clarity and
a state of judicial inconsistency that has existed for far too long.
[21]
In
the result, this appeal is allowed. Dr. El Ocla’s application for citizenship is to be
redetermined on the merits by a different citizenship judge and in accordance
with these reasons.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this appeal is allowed with the matter to be
redetermined on the merits by a different citizenship judge and in accordance
with these reasons.
"R.L.
Barnes"
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