Date: 20110420
Docket: T-1500-10
Citation: 2011 FC 480
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, April 20, 2011
PRESENT: The
Honourable Madam Justice Bédard
BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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BRUNO
ALAIN GEORGES BARON
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is an
appeal by the Minister of Citizenship and Immigration (applicant) under
subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C‑29
(Act), of a decision dated July 20, 2010, by a citizenship judge who approved
the respondent’s application for Canadian citizenship.
I. Factual background
[2]
The
respondent is a French citizen. He became a permanent resident of Canada on
September 21, 2003. Since 2005, he has resided and worked in France. On
September 3, 2008, he sent his application for Canadian citizenship from
France. On June 18, 2010, he entered Canada to appear before the citizenship
judge at his hearing, which took place on June 22, 2010. During the hearing,
the citizenship judge asked the respondent to provide additional information,
including the residence questionnaire, which he did.
[3]
On July 20,
2010, the citizenship judge approved the respondent’s citizenship application. The
applicant filed a request for an appeal in accordance with the Federal
Courts Rules, SOR/98‑106 (Rules).
[4]
The
applicant filed an ex parte motion to obtain an order that would permit
a special mode of service beyond the prescribed deadline. On October 15, 2010, the
Court issued an order to allow this motion and authorized the applicant to serve
his notice of application and any other document by regular mail to the
respondent’s address in Montréal. This order was sent to the respondent at his
home address in Montréal, while the notice of application was served on the
respondent both at his address in Montréal and at his address in France. The
respondent did not appear or file an affidavit or memorandum in his defence as
set out by Rules 305, 307 and 310 of the Rules.
[5]
The
applicant filed a requisition for a hearing pursuant to Rule 314 of the Rules. On
March 22, 2011, the Court ordered that the hearing for this matter take
place on April 13, 2011, before this Court, in Montréal. The Registry
of the Court sent this order to the applicant by priority post on March 23,
2011, again to his Montréal address. The respondent was not present at the
hearing. The applicant made oral submissions.
[6]
The Court may
decide to render a judgment by default when the respondent, on whom proceedings
were duly served, does not appear and/or does not produce a defence (Canada
(Minister of Citizenship and Immigration) v. Dhaliwal, 2008 FC 797, 168
A.C.W.S. (3d) 710 (the respondent did not appear); Canada (Minister of
Citizenship and Immigration) v. Fouodji, 2005 FC 1327 at paragraph 1,
149 A.C.W.S. (3d) 478). This
judgment is therefore rendered by default.
II. Issues
[7]
The
applicant raised two issues in his appeal. The first concerns the
reasonableness of the citizenship judge’s decision when he found that the
respondent met the conditions set out in paragraph 5(1)(c) of the Act,
and the second concerns the adequacy of the reasons for the decision, which, I
believe, is the determinative issue in this case.
III. Applicable standard of
review
[8]
The
adequacy of reasons is generally viewed from the standpoint of procedural
fairness, which requires that the standard of correctness be applied (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Chowdhury v.
Canada (Minister of Citizenship and Immigration), 2009 FC 709 at paragraph
29, 179 A.C.W.S. (3d) 522; Andryanov v. Canada (Minister of Citizenship and Immigration),
2007 FC 186 at paragraph 15, 308 F.T.R. 292; Jang v. Canada (Minister of
Citizenship and Immigration), 2004 FC 486 at paragraph 9, 250 F.T.R. 303; Adu
v. Canada (Minister of Citizenship and Immigration), 2005 FC 565 at paragraph
9, 139 A.C.W.S. (3d) 164).
[9]
Moreover,
it is well established that the decision that determines whether a person has met
the residence requirement is a question of mixed fact and law that is subject to
the standard of reasonableness (Canada (Minister of Citizenship and Immigration)
v. Chang, 2003 FC 1472 at paragraph 7, 128 A.C.W.S. (3d) 441; Rizvi
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1641 at
paragraph 5, 144 A.C.W.S. (3d) 608; Chen v. Canada (Minister of Citizenship
and Immigration), 2006 FC 85 at paragraph 6, 145 A.C.W.S. (3d) 770; Zhao
v. Canada (Minister of Citizenship and Immigration), 2006 FC
1536 at paragraph 39, 306 F.T.R. 206; Pourzand v. Canada (Minister of
Citizenship and Immigration), 2008 FC 395 at paragraph 19, 166 A.C.W.S.
(3d) 222).
IV. Analysis
[10]
In determining
whether he should allow the respondent’s citizenship application, the
citizenship judge had to apply subsection 5(1) of the Act, which stipulates the
following:
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Grant
of citizenship
5.
(1) The Minister shall grant citizenship to any person who
. .
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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:
(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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Attribution
de la citoyenneté
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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[11]
In Vancouver
International Airport Authority v. Public Service Alliance of Canada,
2010 FCA 158 at paragraphs 16 and 17, 320 DLR (4th) 733, the Federal Court
of Appeal found that the adequacy of reasons must be evaluated with four purposes
in mind, that is, the substantive purpose; the procedural purpose; the accountability
purpose; and the “justification, transparency and intelligibility purpose”. The
substantive purpose refers to the reasoning of the decision-maker. The
procedural purpose refers to the fact that the parties must be able to decide
whether to invoke their rights to have the decision reviewed: without bases, it
becomes impossible to do so. The accountability purpose refers to the fact that
the decision must have enough information so that the supervising court can
assess whether the decision meets “minimum standards of legality”. The Federal
Court of Appeal specified that this is an important aspect of the rule of law
that merits respect. Regarding the “justification, transparency and
intelligibility” purpose, it implies that the decision must be “understandable,
with some discernable rationality and logic” and that the parties to the
proceeding and the public are able to understand the meaning. The Federal Court
of Appeal specified that the reasons may be considered sufficient if the administrative
decision-maker fulfils them at a minimum.
[12]
To meet
the requirement of adequate reasons, this Court’s jurisprudence also requires the
citizenship judge to demonstrate that he or she has sufficiently analyzed the
evidence and considered all important factors. In Seiffert v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1072, 277 F.T.R. 253, the Court
stated the following in this respect at paragraph 9:
[9] First, I agree with Justice Snider's
conclusion that a citizenship appeal can be granted for failure to provide a
proper analysis of the evidence. I consider this requirement of a citizenship
judge to be a fundamental part of the duty of fairness. Second, I accept the
proposition advanced by the Respondent that there is no hard and fast rule that
important factors have to addressed in the manner and order which Justice Reed
suggests, but, nevertheless, the decision must leave no doubt that all
important relevant factors were addressed in reaching the decision. . . .
[13]
In Canada
(Minister of Citizenship and Immigration) v. Jeizan, 2010 FC 323 at paragraphs 17
and 18 (available on CanLII), the Court specified what constituted adequate
reasons for a decision and determined that the reasons had to state the tests used
to establish whether the person applying for citizenship had fulfilled his or
her legal residence requirement:
[17] Reasons for decisions are
adequate when they are clear, precise and intelligible and when they state why
the decision was reached. Adequate reasons show a grasp of the issues
raised by the evidence, allow the individual to understand why the decision was
made and allow the reviewing court to assess the validity of the decision: see Lake
v. Canada (Minister of Justice), 2008 SCC 23, [2008] S.C.J. No.
23 at para. 46; Mehterian v. Canada (Minister of Employment
and Immigration), [1992] F.C.J. No. 545 (F.C.A.); VIA Rail Canada Inc.
v. National Transportation Agency, [2001] 2 F.C. 25 (F.C.A.),
[2001] 2 F.C. 25 (C.A.), at para. 22; Arastu, above, at paras. 35-36.
[18] At the very least, the reasons for a
Citizenship Judge’s decision should indicate which residency test was used and
why that test was or was not met: see Canada (Minister of Citizenship and
Immigration) v. Behbahani, 2007 FC 795, [2007] F.C.J. No.
1039 at paras. 3-4; Eltom v. Canada (Minister of Citizenship
and Immigration), 2005 FC 1555, [2005] F.C.J. No. 1979 at para. 32; Gao
v. Canada (Minister of Citizenship and Immigration), 2003 FCT
605, [2003] F.C.J. No. 790 at para. 22; Gao v. Canada
(Minister of Citizenship and Immigration), 2008 FC 736, [2008] F.C.J. No.
1030 at para. 13.
[14]
This Court’s
jurisprudence, which has evolved with respect to interpreting the residence
requirement set out in paragraph 5(1)(c) of the Act, traditionally
recognized that there were three different methods of analysis and that the
citizenship judge could accept any one of them. The three methods of analysis
were stated as follows in Mizani v. Canada (Minister of Citizenship and Immigration),
2007 FC 698, at paragraphs 10 to 13, 158 A.C.W.S. (3d) 879:
[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).
[11] I essentially agree with Justice James
O’Reilly in Nandre, above, at paragraph 11 that the first test is a test
of physical presence, while the other two tests involve a more qualitative
assessment:
Clearly, the Act can be interpreted two ways, one requiring
physical presence in Canada for three years out of four, and another requiring
less than that so long as the applicant's connection to Canada is strong. The
first is a physical test and the second is a qualitative test.
[12] It has also been recognized that any of
these three tests may be applied by a Citizenship Judge in making a citizenship
determination (Lam v. Canada (Minister of Citizenship and Immigration),
[1999]
F.C.J. No. 410 (T.D.) (QL)). For instance, in Hsu v. Canada
(Minister of Citizenship and Immigration), 2001 FCT
579, [2001]
F.C.J. No. 862 (QL), Justice Elizabeth Heneghan at paragraph 4
concludes that any of the three tests may be applied in making a residency
determination:
The case law on citizenship appeals has clearly established
that there are three legal tests which are available to determine whether an
applicant has established residence within the requirements of the Citizenship
Act (...) a Citizenship Judge may adopt either the strict count of days,
consideration of the quality of residence or, analysis of the centralization of
an applicant's mode of existence in this country.
[Citations omitted]
[13] While a Citizenship Judge may choose to
rely on any one of the three tests, it is not open to him or her to
"blend" the tests (Tulupnikov, above, at para. 16).
[15]
Despite an
attempt by Justice Mainville (then of the Federal Court) to standardize the
case law by recognizing only one method of analysis in Canada (Minister of
Citizenship and Immigration) v. Takla, 2009 FC 1120, 359 F.T.R. 248, several judges of this Court
continue to recognize that citizenship judges may apply one of the three traditionally
recognized methods of analysis (see Hao v. Canada (Minister of Citizenship
and Immigration), 2011 FC 46 (available on CanLII); El-Khader v. Canada
(Minister of Citizenship and Immigration), 2011 FC 328 (available on CanLII)
and Alinaghizadeh v. Canada (Minister of Citizenship and Immigration),
2011 FC 332 (available on CanLII), which outline the current state of
the jurisprudence). Therefore, a citizenship judge may use the method he or she
deems appropriate insofar as he or she shows the logical progression that was followed.
[16]
In this
case, the citizenship judge’s decision is limited to one single paragraph of
five lines written by hand and inserted into the “Notice to the Minister” form,
which reads as follows:
[translation]
I gave a residence questionnaire to the applicant,
giving him 20 days (14.7) to provide additional evidence of his residence in
Canada. Mr. Baron provided me with additional evidence of his
establishment in Canada. On a balance of probabilities, Mr. Baron established
and maintained his residence in Canada for the necessary period and met the requirements
of 5(1) of the Act.
[17]
The
citizenship judge did not indicate the method and the tests he used to
determine that the respondent had met his residence requirement. The onus that
was on the judge to provide adequate reasons for his decision and explain why
he found that the respondent had met his residence requirement was even greater
because the evidence submitted by the respondent contained significant omissions
and contradictions. However, he made no reference to the contradictions or
omissions raised by the applicant, or to the content of the questionnaire or
the citizenship application, which raises doubt as to whether he considered all
of the relevant factors in his analysis.
[18]
The
reasons for the citizenship judge’s decision are not adequate. The reasoning is
unclear. The decision is not transparent and it is impossible to understand its
basis. Given this situation, I am not in a position to determine whether it
falls within a range of possible, acceptable outcomes in respect of the facts
and law. The intervention of the Court is therefore warranted.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that the
appeal is allowed. The decision dated July 20, 2010,
by the citizenship judge Gilles H. Duguay to grant citizenship to the
respondent is set aside and the matter is referred back to another citizenship
judge for redetermination in accordance with these reasons.
“Marie-Josée
Bédard”
Certified
true translation
Janine
Anderson, Translator
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