Docket: T-378-11
Citation: 2011 FC 1347
Toronto, Ontario, November 23,
2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
|
|
ANTHONY SINANAN
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Mr. Anthony Sinanan, became a permanent resident of Canada in 1998. He has worked
outside Canada for lengthy periods of time
since his landing. The Applicant submitted his application for citizenship on
April 17, 2009. In his application, he disclosed that, during the four-year
period prior to his application, he had been physically absent from Canada for 876 days. In other words,
he was present in Canada for only 584 days, 511 days
short of the required 1,095 days of residence.
[2]
In his
citizenship application and during the course of two interviews, the Applicant
submitted extensive information and materials that related to his
“establishment” in Canada. By a decision dated December
24, 2010, a 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 [Citizenship Act or Act]. The Citizenship Judge stated in her
decision that she relied on the analytical test of Justice Muldoon in Re
Pourghasemi (1993), 62 FTR 122 (QL), 39 ACWS (3d) 251 (TD) [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
years preceding a citizenship application, pursuant to s. 5(1)(c) of the Citizenship
Act.
[3]
The
Applicant brings an appeal of this decision pursuant to s. 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).
[4]
The Applicant submits
that the Citizenship Judge erred in “blindly” applying the quantitative test
set out in Re Pourghasemi, without considering that there may be other,
equally valid, and more appropriate citizenship residency tests. In his
submissions, the Applicant does not argue that the Citizenship Judge was
obliged to follow the qualitative analysis
articulated in Re Papadogiorgakis, [1978] 2 FC 208 (QL), 88 DLR
(3d) 243 (TD) [Re Papadogiorgakis] and refined in Re Koo (1992),
[1993] 1 FC 286 (QL), [1992] FCJ No 1107 (TD) [Re Koo]. Rather, the
Applicant accepts that there are two tests, but argues that the Judge erred by
failing to provide a rationale for using the quantitative test on the
particular facts of this case.
[5]
An
applicant who meets the criteria set out in s. 5 of the Citizenship Act
will be granted citizenship. A certain period of residence is required. Pursuant
to s. 5(1)(c), an applicant for citizenship must demonstrate that he or she has, within the four years
immediately preceding the date of his or her application, accumulated at least
three years of residence in Canada. There is no definition of “resident” or
“residence” under the Citizenship Act.
[6]
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. 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 out of the
last four years. This has been referred to as the “physical presence” test. The
qualitative approach was articulated in Re Papadogiorgakis,
above, and refined in Re
Koo, above. The test in Re Koo, as first utilized by Justice
Reed, allows the citizenship judge to analyze six factors to determine whether
an applicant has met the residence requirement by his or her “centralized …
mode of existence”, even where the applicant falls short of the 1,095-day requirement.
[7]
In Lam
v Canada (Minister of Citizenship and Immigration) (1999), 164 FTR 177
(QL), 87 ACWS (3d) 432 (TD), Justice Lutfy noted the divergence in the
jurisprudence and 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.
[8]
In the 12
years since Lam, the divergence in the Court has not been resolved. Over
the past two years, some of my colleagues have attempted to galvanize the Court
around one or the other of the tests. In Canada (Minister of Citizenship and Immigration) v Takla, 2009 FC 1120, 359 FTR 248,
Justice Mainville determined that the qualitative approach should be the only
test. In contrast, Justice Rennie, in
Martinez-Caro v Canada (Minister of Citizenship and Immigration), 2011 FC 640, 98 Imm LR (3d) 288 [Martinez-Caro],
carried out a careful analysis of the proper statutory interpretation of s.
5(1)(c) of the Act and concluded that the physical presence test was the
only correct test.
[9]
In my
view, the matter has come a long way towards resolution through the decision of
my colleague, Justice Rennie, in Martinez-Caro, above. His decision differs from the
others cited because, for the first time, a judge of our Court conducted an
exacting analysis of s. 5(1)(c) using well-established modern principles of
statutory interpretation. Justice
Rennie concluded that application of these
principles supports the physical presence test, and not the qualitative
approach. Even if I might quibble with his characterization of the standard of
review as correctness, his analysis and conclusion are compelling. I adopt his
reasons and conclusion on this question.
[10]
The Applicant argues
that recent case law of this Court supports his position that the Citizenship
Judge erred in failing to explain why she chose the physical presence test over
the Re Koo test. In particular, the Applicant cites Cardin v Canada (Minister of Citizenship and
Immigration), 2011 FC 29
at para 18, 95 Imm LR (3d) 57 [Cardin], and El Ocla v Canada (Minister of Citizenship and
Immigration), 2011 FC
533 at para 19, [2011] FCJ No 667 [El Ocla].
[11]
I do not read either Cardin
or El Ocla as establishing an obligation on a citizenship judge to
rationalize her choice of test. As I read these cases, they affirm that it will
be unreasonable to apply the physical presence test in certain factual
situations. In any event, both cases can be distinguished from the case at bar.
[12]
In Cardin,
Justice Mactavish found that Mr. Cardin’s application for citizenship was
rejected on the Citizenship Judge’s specific finding that his absences from
Canada meant that he had not sufficiently “Canadianized” himself (Cardin,
above at para 13). On reviewing the facts before the Citizenship Judge, Justice
Mactavish found that the underlying rationale for applying the Re Pourghasemi test was absent; that is, the facts did
not support a conclusion that Mr. Cardin had not become “Canadianized”. Justice
Mactavish’s decision was not, as submitted by the Applicant, founded on an
obligation of the Citizenship Judge to provide a rationale for rejecting the Re
Koo test. In the case before me, the Citizenship Judge did not base her
decision on a finding that the Applicant had not become “Canadianized”. Cardin
is accordingly distinguishable.
[13]
The case of El
Ocla, above, is very fact specific. Dr. El Ocla was only 99 days short of
the required 1,095 days. In addition, Dr. El Ocla, a tenured professor at a
Canadian university, had established himself in many significant ways. On those
facts, Justice Barnes concluded that the Citizenship Judge had erred in
applying the physical presence test. The facts of the case before me are much
less compelling.
[14]
One further
consideration is that the Citizenship Judge did not ignore any of the evidence
of the Applicant’s establishment in Canada. The Judge’s notes, as contained in the
Certified Tribunal Record, are detailed and accurately reflect the facts before
her and her view of the evidence. The notes highlight certain concerns with the
evidence that extend beyond a mere counting of days. The Judge clearly turned
her mind to the nature of the Applicant’s establishment in Canada; her observations included the following:
·
“from beginning
always worked away [in] Trinidad, Syria, Algeria – never established
professional career in Canada”; and
·
“always vacationed in
Trinidad . . . greater connection to Trinidad than Canada”.
Thus,
if there was any obligation on the Citizenship Judge to rationalize her choice
of test (and I do not believe that there was), her notes provide the rationale
for only applying the physical presence test.
[15]
Insofar as Justice
Barnes concluded in El Ocla, above at para 19, that a citizenship judge
errs by applying the physical presence test, I simply do not agree that this is
a proper interpretation of the law. I prefer the analysis and conclusion of
either Justice Rennie in Martinez-Caro that the correct (and, thus,
only) test is the physical presence test; or Justice Lutfy in Lam that
either test may be used.
[16]
Applying Martinez-Caro
to the facts of this case leads directly to the conclusion that the Citizenship
Judge applied the correct test to the facts before her. There is no question as
to whether the Judge ought to have rationalized the choice since the
quantitative test is the only correct test. In this case, the decision clearly
sets out that the Citizenship Judge was following the physical presence
interpretation of s. 5(1)(c). The only question to be determined by the
Citizenship Judge was therefore whether the Applicant was physically present in
Canada for 1,095 days. The Applicant was not
just a few days short; the evidence demonstrates that he was only present in Canada for 584 days during the four year period prior to his
application for citizenship.
[17]
Applying Lam
to the facts of this case and on a standard of review of reasonableness, I
would conclude that the Citizenship Judge’s reliance on the physical presence
test was an acceptable choice that was reasonably applied to the facts.
[18]
In sum, there is no
reviewable error. On either a standard of reasonableness or correctness, the
Citizenship Judge did not err by applying the physical presence test to the
facts before her. Moreover, there was no obligation upon the Citizenship Judge
to provide justification or a rationale for applying the physical presence test
rather than the qualitative test from Re Koo.
[19]
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”
Email this Content