Date: 20081024
Docket: T-650-08
Citation: 2008 FC 1193
Ottawa, Ontario, October 24,
2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
SHAHZAD
HOOSHANG BAKHT
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 14(5) of the Citizenship Act,
R.S.C. 1985, c. C-29 (the Act) and section 21 of the Federal Courts Act,
R.S.C., 1985, c. F-7, by Shahzad Hooshang Bakht (the Applicant), to appeal the
decision of Citizenship Judge Renata Brum Bozzi (Judge), dated February 26,
2008. The Citizenship Judge concluded the Applicant did not meet the residency
requirement set out in paragraph 5(1)(c) of the Act in order to be granted
Canadian citizenship.
I. Factual Background
[2]
The
Applicant is a citizen of India who first came to Canada on August
13, 1996 as a permanent resident. He applied for citizenship on August 4, 2006.
[3]
The
Applicant’s wife and children are Canadian citizens who are living in Canada. They reside
in a home owned by the Applicant and his wife.
[4]
The
relevant period for consideration of the Applicant’s residency in Canada is from
August 4, 2002 to August 6, 2006. The Applicant has 1,460 days of
residence in this period.
[5]
The
Applicant claimed four absences during the relevant four-year period:
a) From
October 7, 2002 until April 27, 2003 = 202 days for business trips;
b) From
September 20, 2003 until April 14, 2004 = 207 days for business trips;
c) From
March 28, 2005 until April 25, 2005 = 28 days to care for his sick brother;
d) From
September 27, 2005 until June 23, 2006 = 269 days to care for his sick brother.
[6]
The
Applicant has declared 706 days of absence. He was physically present in
Canada for 754 days
and has a substantial shortfall of 341 days from the required 1,095 days of
physical presence required by the Act.
[7]
The
Applicant attended a hearing before January 17, 2008, where he testified that
he is part owner of a family restaurant in India called “New York Restaurant
and Bar”. When he is in India, he takes on a supervisory role at the
restaurant.
[8]
The
Applicant also testified that he took long trips when he was working for a
restaurant in Canada called
Bombay Behl in order to make purchases for that restaurant.
[9]
He
also travels to India for extended periods of time to care for his
ill brother who has cirrhosis of the liver. As the eldest male in the
family, the Applicant travels to India to assist his
sister-in-law with her three children and to provide moral support to his
brother and his family.
[10]
At
the hearing, the Applicant presented copies of his passports, as well as
originals of all his passports with the exception of the passport that covered
the relevant period for determining his residency. He testified that he
had forgotten that passport in India. The Judge was not able to verify the
original passport against the copies to confirm that the Applicant’s absences
were limited to those claimed.
II. Decision
Under Review
[11]
The
Judge rejected the Applicant’s application and concluded that the Applicant had
not accumulated at least three years of residence in Canada within the four
years immediately preceding the date of his application in order to comply with
the residence requirement set out in paragraph 5(1)(c) of the Act.
[12]
The
Judge stated that based on her understanding of the recent jurisprudence, the
most important factor in considering the residency requirement is whether the
Applicant has established his presence in Canada by having lived and been
physically present in Canada (Pourghasemi (Re), 62 F.T.R. 122 (F.C.T.D.).
[13]
The
Judge also acknowledged that the physical presence of the Applicant for the
entire 1,095 days contemplated by the Act is not always required when there are
exceptional circumstances. The Judge found no evidence of such
circumstances that could be considered a situation of special and unusual
hardship, or of services of exceptional value to Canada (subsections
5(3) and 5(4) of the Act). The Applicant chose to visit his relatives with the
knowledge that this would negatively impact on his residence in Canada and the
timing of the application was also his choice. The Judge found no reason to
depart from the requirement of physical presence in the Applicant’s
circumstances.
III. Issues
[14]
This
application raises the following questions:
a)
Did
the Citizenship Judge err by failing to clearly set out the test which was
applied to determine residency?
b)
Are
the Citizenship Judge’s reasons adequate?
[15]
The
present appeal shall be dismissed for the following reasons.
IV. Relevant Legislation
[16]
Section
21 of the Federal Courts Act, R.S.C., 1985, c. F-7 and subsection 15(4) of
the Citizenship Act set out the Applicant’s right of appeal of the decision
of the Citizenship Judge:
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21. The Federal Court has exclusive
jurisdiction to hear and determine all appeals that may be brought under
subsection 14(5) of the Citizenship Act.
|
21. La Cour fédérale a
compétence exclusive en matière d'appels interjetés au titre du paragraphe
14(5) de la Loi sur la citoyenneté.
|
|
14. (5) The Minister or the applicant may
appeal to the Court from the decision of the citizenship judge under
subsection (2) by filing a notice of appeal in the Registry of the Court
within sixty days after the day on which
(a) the
citizenship judge approved the application under subsection (2); or
(b) notice was
mailed or otherwise given under subsection (3) with respect to the
application.
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14. (5) Le ministre et le demandeur
peuvent interjeter appel de la décision du juge de la citoyenneté en déposant
un avis d’appel au greffe de la Cour dans les soixante jours suivant la date,
selon le cas :
a)
de l’approbation de la demande;
b)
de la communication, par courrier ou tout autre moyen, de la décision de
rejet.
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[17]
The
residency requirements are set out in paragraph 5(1)(c) of the Citizenship
Act:
|
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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[18]
The
special or extraordinary circumstances which can be considered at the
discretion of the Citizenship Judge are enumerated in subsections 5(3) and 5(4)
of the Act:
|
5. (3) The Minister may, in his
discretion, waive on compassionate grounds,
(a) in the
case of any person, the requirements of paragraph (1)(d) or (e);
(b) in the
case of a minor, the requirement respecting age set out in paragraph (1)(b),
the requirement respecting length of residence in Canada set out in paragraph
(1)(c) or the requirement to take the oath of citizenship; and
(c) in the
case of any person who is prevented from understanding the significance of
taking the oath of citizenship by reason of a mental disability, the
requirement to take the oath.
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5. (3) Pour des raisons
d’ordre humanitaire, le ministre a le pouvoir discrétionnaire d’exempter :
a)
dans tous les cas, des conditions prévues aux alinéas (1)d) ou e);
b) dans le cas
d’un mineur, des conditions relatives soit à l’âge ou à la durée de résidence
au Canada respectivement énoncées aux alinéas
(1)b) et c), soit à la prestation du serment de citoyenneté;
c)
dans le cas d’une personne incapable de saisir la portée du serment de
citoyenneté en raison d’une déficience mentale, de l’exigence de prêter ce
serment.
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5. (4) In order to alleviate cases of
special and unusual hardship or to reward services of an exceptional value to
Canada, and notwithstanding any other provision of this Act, the Governor in
Council may, in his discretion, direct the Minister to grant citizenship to
any person and, where such a direction is made, the Minister shall forthwith
grant citizenship to the person named in the direction.
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5. (4) Afin de remédier à une
situation particulière et inhabituelle de détresse ou de récompenser des
services exceptionnels rendus au Canada, le gouverneur en conseil a le
pouvoir discrétionnaire, malgré les autres dispositions de la présente loi,
d’ordonner au ministre d’attribuer la citoyenneté à toute personne qu’il
désigne; le ministre procède alors sans délai à l’attribution.
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V. Analysis
A. Standard of Review
[19]
Whether
the Applicant established that he was physically present in Canada for 1,095
days is a question of fact. The parties agree, and I am satisfied, that the
Judge’s finding on this point is reviewable on the newly articulated standard
of reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190; Chen v. Canada (Minister of
Citizenship and Immigration), 2008 FC 763, [2008] F.C.J. No. 964 (QL)).
The standard of review on breach of procedural fairness is correctness.
1. Did the
Citizenship Judge adequately set out the test she applied in the Applicant's
case?
[20]
The
Applicant argues that it is trite law that, as a general rule, the Citizenship
Act should be interpreted liberally (Canada (Secretary
of State) v. Man, 6 F.T.R. 222, 2 Imm. L.R. (2d) 256 (F.C.T.D.) and that
this liberal interpretation is supported by the Court since the decision in Re
Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.).
[21]
Despite
jurisprudence illustrating that a person’s residency may be established for
only a short period of time, the "qualitative" test (Cheung (Re),
32 F.T.R. 245 (F.C.T.D.); Lau (Re), 34 F.T.R. 81 (F.C.T.D.), the Judge in
this case felt it was inappropriate to apply such a liberal interpretation and she
preferred the "quantitative" and more restrictive test. The
Applicant submits that this constitute an error, especially because the
applicant had asked that the first one be applied knowing that he could not
meet the second one.
[22]
The
Applicant acknowledges that the Judge is entitled to choose the most
appropriate interpretation on the issue of what constitutes residency. However,
the Applicant submits that if the Judge’s explanation is lacking, this
constitutes a reviewable error (Haj-Kamali v. Canada (Minister of
Citizenship and Immigration), 2007 FC 102, 154 A.C.W.S. (3d) 1017).
[23]
The
Applicant alleges that there were factors which allowed for a liberal interpretation
in the case at bar. The Applicant and his wife have owned a home in Canada since 2002
and his spouse and two children are Canadian citizens who reside in Canada. The
Applicant also has a considerable business interest in Canada. He states
that Canada is his home
and that he only left due to his brother’s illness and to pursue business
interests.
[24]
Furthermore,
the Judge herself noted: “I have no doubt that Mr. Bakht will someday make a
very good Canadian citizen …” The Applicant therefore submits that the decision
not to use the liberal interpretation was unreasonable.
[25]
According
to the Respondent, it is clear that the Judge applied the physical presence
test set out in Pourghasemi (Re), above. In her reasons, the Judge
showed that physical presence is not necessarily required to demonstrate
residency. Nevertheless, in the case at bar, she chose to apply the physical
presence test, which was a decision that was open to her as it is the
prerogative of the Citizenship Judge to adopt the approach she considers as
appropriate in determining whether an Applicant has satisfied the residency
requirements of the Act (Rizvi v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1641, 144 A.C.W.S. (3d) 608; Wang v. Canada
(Minister of Citizenship and Immigration), 2008 FC 390, 166 A.C.W.S. (3d)
220; Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT
267, 112 A.C.W.S. (3d) 827; Lam v. Canada (Minister of Citizenship and
Immigration), 164 F.T.R. 177, 87 A.C.W.S. (3d) 432) (F.C.T.D.).
[26]
The
Respondent adds that the Court has recognized, as did the Judge, that the
jurisprudence has created a strong inference that the presence in Canada during
three years out of the four-year period must be substantial (Rizvi,
above; Canada (Minister of Citizenship and Immigration) v. Lu, 2001 FCT
640, 106 A.C.W.S. (3d) 786; Zhang v. Canada (Minister of Citizenship and
Immigration), 197 F.T.R. 225 (F.C.T.D.).
[27]
According
to the Respondent, the question of whether the Applicant established that he
was physically present in Canada for 1,095 days is a question of fact. The
Judge considered all the relevant factors to the Applicant’s application for
citizenship. However, she found that he had not been physically present
in Canada for the
required number of days. This decision is supported by the evidence and was
reasonably open to her.
[28]
In
Lam, above Justice Lutfy, as he then was said at paragraph 14:
… In my opinion, it is open to the
citizenship judge to adopt either one of the conflicting schools in this Court
and, if the facts of the case were properly applied to the principles of the
chosen approach, the decision of the citizenship judge would not be wrong. …
[29]
This
quote has been repeatedly cited since Lam, more recently in Chen v. Canada (Minister of
Citizenship and Immigration), 2008 FC 763, [2008] F.C.J. No. 964 (QL).
[30]
The
Court is of the view that notwithstanding an applicant's request, a citizenship
judge has the authority and discretion to choose one of the tests as long as it
is properly applied to the facts that he or she is confronted with.
[31]
In
the case at bar, the Judge decided to employ the physical presence test. The Court
finds that based on the facts of this case, the decision is defensible
in fact and law and is therefore reasonable. The Applicant has
provided insufficient evidence to justify the consideration of special or
particular circumstances in establishing whether he has met the residency
requirement of the Act.
2. Are the
Citizenship Judge's reasons adequate?
[32]
The
Applicant correctly states that providing meaningful reasons is necessary in
order to ensure procedural fairness (Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817; Adu v. Canada
(Minister of Citizenship and Immigration), 2005 FC 565, 139 A.C.W.S. (3d) 164).
[33]
The
Applicant submits that the reasons at bar are flawed because they do not
explicitly set out the test used by the Judge and they do not clearly explain
why the Judge found no special or exceptional circumstances requiring the
application of the liberal interpretation in this case.
[34]
The
Respondent argues that the Judge’s refusal letter clearly explains to
the Applicant what residency test was applied, why it was applied and why he
failed to meet it. A Judge’s reasons are required to demonstrate an understanding
of the case law, to be intelligible to the parties, and to provide the basis
for meaningful appellate review. The Judge is required to set out the evidence
supporting her findings in enough detail to disclose that she acted within
jurisdiction and not contrary to the law. However, the Respondent notes that the
Judge must not mention all of the evidence in her decision as she is presumed
to have considered it all (Ahmed v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1067, 225 F.T.R. 215; Lam,
above; Cheung, above).
[35]
The
Respondent explains that the Court is required to adopt a functional approach
to the requirement of reasons. An appeal based on insufficient reasons will
only be allowed if the Applicant shows prejudice to his right of judicial
review in order to sustain a challenge on the adequacy of reasons. The
Respondent submits that the Applicant has not demonstrated such prejudice in
this case (Za’rour v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1281, 321 F.T.R. 120; R. v. Dinardo,
2008 SCC 24, 374 N.R. 198).
[36]
I
have already concluded that the Judge explicitly set out the test she used to
establish whether the Applicant has met the residency requirements of the Act. Furthermore,
the Judge stated that she examined the facts in this case and found no
“evidence of special circumstances that could be considered a situation of
special and unusual hardship, or of services of exceptional value to Canada.” Reasons
must explain to the parties why the Judge decided as she did and they must also
be sufficient to enable the Court to discharge its appellate function.
[37]
In
R. v. Sheppard, [2002] 1 S.C.R. 869, the Supreme Court of Canada held
that the inadequacy of reasons is not a free-standing right of appeal in that
it automatically constitutes a reviewable error. The Court held that the
“requirement of reasons, in whatever context it is raised, should be given a
functional and purposeful approach.” (see also R. v. Kendall, 75 O.R.
(3d) 565 (Ont. C.A.)). A party seeking to overturn a decision on
the basis of inadequate reasons must show that the deficiency in reasons has
prejudiced the right of a party to file an appeal.
[38]
In
the present case, the Judge explained that the Applicant “chose to visit
his relatives with the knowledge that this would negatively impact on his
residence in Canada. The timing
of the Application is also his choice.” This explanation as to why the Judge
decided the way she did provides meaningful appellate review of the
reasonableness of her decision.
[39]
The
Court's intervention is not warranted.
JUDGMENT
THIS COURT ORDERS
that the appeal be dismissed.
“Michel
Beaudry”
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