Date: 20080327
Docket: T-1052-07
Citation: 2008 FC 395
Ottawa, Ontario, this 27th day of March, 2008
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
NILOUFAR
POURZAND
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an appeal of a decision of a Citizenship Judge dated March 31, 2007,
(Decision) in which the Judge refused to grant the Applicant, Ms. Niloufar
Pourzand, Canadian citizenship on the basis that she had not met the residency
requirement under section 5(1)(c) of the Citizenship Act, R.S.C.
1985, c. C-29 [Act].
Background
[2]
The
Applicant, a citizen of Iran, became a permanent resident of Canada on March 27,
2001.
[3]
The
Applicant is a program coordinator and field officer for UNICEF. She has been
employed with UNICEF for over 20 years and is currently under assignment in Barbados, a position
that she accepted approximately one month after applying for citizenship.
Because of the nature of the Applicant’s work, she must spend the majority of
her time outside of Canada.
[4]
The
Applicant’s husband and two daughters are Canadian citizens. Her mother is a
permanent resident and was sponsored by the Applicant. The Applicant’s husband,
daughters and mother live in Toronto in a home owned by the
Applicant and her husband. The Applicant’s husband is retired; the children
attend school in Toronto. The Applicant has no siblings, and her father
is deceased.
[5]
The
Applicant has not lived in Iran since 1997 and she owns no property in Iran. Her citizenship
application reveals that during the relevant four-year period, the Applicant
travelled to Iran on three
occasions for purposes relating to her work with UNICEF.
[6]
The
Applicant has no connections with any other country. Her stays in other
countries have been temporary and for professional reasons only. The majority
of the Applicant’s work with UNICEF has been in Pakistan, Afghanistan, and Tajikistan.
[7]
At
the beginning of the relevant four-year period in March 2002, the Applicant was
living and working in Pakistan. She returned to Canada
in June 2002 with her daughters, who had been living and studying in Pakistan.
[8]
The
Applicant took a leave from her responsibilities with UNICEF and remained in Canada from June
2002 until August 2003, during which time she worked on her PhD thesis as a
visiting scholar at York University in Toronto.
[9]
During
this time, the Applicant made five trips to the United Kingdom to meet with the
supervisor of her doctoral studies at the University of Greenwich
in London,
England. While in
the United
Kingdom,
she attended two conferences and gave a presentation at a school.
[10]
The
Applicant worked with UNICEF as a Programme Coordinator in Tajikistan from August
2003 until February 2006. During this time, the Applicant frequently returned
to Canada to visit her family.
[11]
In
March 2004, the Applicant received her PhD from the University of Greenwich.
[12]
In
February 2006, the Applicant commenced her position as a Programme Officer for
UNICEF in Barbados.
[13]
The
Applicant applied for Canadian citizenship on January 3, 2006. It was
determined that a residency hearing with a Citizenship Judge was required
because the Applicant had been physically present in Canada for less than 900
days and there were credibility concerns. The hearing was conducted on February
21, 2007.
Decision
Under Review
[14]
The
Citizenship Judge found that the Applicant was physically present in Canada for
691 days and absent for 769 days, leaving her 404 days short of having
established the minimum requirement of 1095 days during the relevant four-year
period as required by section 5(1)(c) of the Act. The Citizenship Judge
applied the test in Re Koo, [1993] 1 F.C. 286 (F.C.T.D.) and refused the
application for citizenship after concluding that the Applicant had not centralized
her mode of existence in Canada. The Judge’s notes also indicate that she found
the Applicant had failed to supply sufficient evidence of a documentary and
oral nature to satisfy the requirements of residency. She further stressed that
the Applicant had been outside the country more than she had been in it.
Issues
[15]
The
Applicant challenges the Decision on three grounds:
1.
Did
the Citizenship Judge err in finding that the Applicant did not meet the
requirements of section 5(1)(c) of the Act?
2.
Did
the Citizenship Judge commit a breach of procedural fairness by failing to
indicate to the Applicant during the residency hearing the areas of concern
that would affect her Decision, thereby denying the Applicant the opportunity
to answer the Citizenship Judge’s concerns?
3.
Did
the Citizenship Judge err in failing to provide a reason for not exercising her
statutory discretion to make a favourable recommendation to the Minister under
subsections 5(3) and 5(4) of the Act?
Reasons
[16]
Section 5(1) of the Act sets out the necessary criteria for obtaining
citizenship. Section 5(1)(c) requires that a person accumulate at least
three years, or 1,095 days, of residence within the four years immediately
preceding the date of his or her application for citizenship. The Act does not
define “residency.” There has been divergence in this Court as to the test to
be applied in determining whether an applicant has satisfied the residence
requirements. In short, these tests are set out in Re Koo, above, Re
Pourghasemi (1993), 62 F.T.R. 122 (F.C.T.D.), and Re Papadogiorgakis
[1978] 2 F.C. 208 (F.C.T.D.). A citizenship judge may adopt any of the three
residency tests and not be in error for that reason.
[17]
In this
case, the Citizenship Judge applied the centralized mode of existence test, as
set out in Re Koo, which permits an individual to satisfy the residency
requirements by establishing that Canada is the country in which he or she regularly, normally or
customarily lives.
[18]
The Applicant challenges the Decision on the
basis of several factual errors, as well as errors in the application of the
legal test for determining residency under section 5(1) of the Act. The
Applicant also argues that the Citizenship Judge breached the rules of
procedural fairness.
[19]
There has been general consensus in the jurisprudence of
this Court that the applicable standard of review for a citizenship judge’s
determination of whether an applicant meets the residency requirement, which is
a question of mixed fact and law, is reasonableness simpliciter (Canada (Minister of
Citizenship and Immigration) v. Chang, 2003 FC 1472; Rizvi v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1641; Chen v. Canada (Minister
of Citizenship and Immigration), 2006 FC 85; Zhao v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1536). In
light of the Supreme Court of Canada’s recent decision in Dunsmuir v. New
Brunswick, 2008 SCC 9 [Dunsmuir], wherein the Court collapsed this
standard and the patent unreasonableness standards into one standard of
reasonableness, I find that the applicable standard of review as regards the
Citizenship Judge’s determination of whether the Applicant met the residency
requirement is reasonableness.
[20]
With respect to the alleged factual errors, a
number of pre-Dunsmuir authorities from this Court held that the patent
unreasonableness standard was to be applied to a citizenship judge’s findings
of fact. Considerable deference is owed to citizenship judges’ findings of
fact, as they have access to the original documents and an opportunity to
discuss the relevant facts with the applicant. Thus, applying Dunsmuir,
these findings are also reviewable on a reasonableness standard. I note,
however, that even if the patent unreasonableness standard had been applied
when reviewing the Citizenship Judge’s findings of fact in the present case, my
findings would have been the same.
[21]
Procedural
fairness questions are pure questions of law reviewable on a correctness
standard. The second issue is thus reviewable on this standard. The third issue
raised concerning the adequacy of reasons is also a question of procedural
fairness and natural justice and is also reviewable on a standard of
correctness (Andryanov v. Canada (Minister of Citizenship and Immigration),
2007 FC 186 at para. 15; Jang v. Canada (Minister of Citizenship and
Immigration) (2004), 250 F.T.R. 303, 2004 FC 486 at para. 9; Adu v. Canada (Minister of
Citizenship and Immigration), 2005 FC 565 at para. 9).
1.
Did the Citizenship Judge err in finding that the Applicant
did not meet the requirements of section 5(1)(c) of the Act?
[22]
In
her submissions, the Applicant outlines numerous errors of fact that, according
to the Applicant, are cumulatively sufficient to have affected the Citizenship
Judge’s Decision to deny the Applicant citizenship and are grounds, in and of
themselves, to allow this appeal. The Respondent, on the other hand, submits
that many of the errors are differences of opinion while others are minor and
insubstantial. It is the Respondent’s position that none of the errors, if
corrected, would have altered the outcome of the Decision and that, even if the
Decision were quashed, a redetermination of this matter would result in the
same conclusion.
[23]
After
carefully reviewing the Decision, the tribunal record, and the party’s
submissions, it is clear to me that the Citizenship Judge not only misapplied
the Re Koo test in part, but she also made significant errors of fact
which, if not made, may well have resulted in a different conclusion. In my
view, the Applicant is entitled to have the merits of her application properly
assessed based on the facts of her case.
[24]
Some
of the errors are as follows:
a)
The
Citizenship Judge noted that there appeared to be contradictory information in
the Applicant’s residency questionnaire and her resume with respect to the
dates the Applicant worked as a Child Protection Officer in Afghanistan – the
residency questionnaire indicated that she held this position from March 2001
to June 2002, whereas her resume stated that the position was from January 2000
to February 2002. The residency questionnaire asks applicants to list their
employment and academic experience since their arrival in Canada. In accordance
with these instructions, the Applicant stated that as of March 2001, when she
arrived in Canada, she was a Child
Protection Officer in Afghanistan. Thus, there was no
actual contradiction. This is significant in light of the credibility concerns
regarding the Applicant. However, in my view, this error by itself would not be
sufficient to refer the matter back for redetermination;
b)
The
Citizenship Judge stated that some passport stamps appeared inconsistent with
absences listed on the Applicant’s residency questionnaire. In particular,
there were two stamps that, according to the Citizenship Judge, were from Pakistan
and acquired during times when the Applicant had declared she was in Tajikistan. A review of the
stamps indicates that the Citizenship Judge was incorrect with respect to both
stamps. Both stamps are from Tajikistan;
c)
Although
the Citizenship Judge noted that the Applicant said she returned to Canada in June 2002 and
remained until August 2003, and also noted that the Applicant had lived in
Canada for a period of one year as a visiting PhD scholar, the Citizenship
Judge mistakenly stated as follows:
In March of 2004, you received a PhD in
Gender and Ethnic Studies from the University of Greenwich, London, England,
after a year of study. It is unclear whether your husband visited with you, or
lived with you in London. Your daughters remained in Canada….
In my view, this is a
significant error of fact, as the Applicant did not live in London at any time during the
relevant four-year period, including the period during which she completed her
PhD. From June 2002 to August 2003, she was living in Canada with her husband and
two daughters. From August 2003 to March 2004, the Applicant was living in Tajikistan while working for
UNICEF. The Applicant visited London on five occasions during the relevant four-year period for
the purpose of meeting with the supervisor of her doctoral studies. These
visits were for short periods during which the Applicant could not have been
considered a resident of the United Kingdom;
d)
In
reference to an email sent by the Applicant outside the relevant four-year
period to the Canadian Women’s Club in Barbados in which the Applicant asked whether there were
any Iranian-Canadian members in the Club, the Citizenship Judge noted as
follows:
It is reasonable to assume that the most
obvious place to find Iranian-Canadian women is in Canada, not in Barbados; as a result, the email request suggests that you may not
have developed friendships with many Iranian-Canadian women when you lived in
Canada for a year as a visiting PhD scholar.
This inference of fact
is unreasonable and unsupported by the evidence. The Applicant’s attempt to
seek out other Iranian-Canadian women does not suggest that the Applicant did
not develop friendships with women of her nationality in Canada. In addition, the email
and the Applicant’s membership in this group indicates that, regardless of
where the Applicant is living, she takes the initiative to surround herself
with Canadian people. This finding is supported by a letter of recommendation
from Mr. William Patton, United Nations Resident Coordinator in Tajikistan, in
which he states that the Applicant “maintains good contacts with other Canadians
in Tajikistan.” It is further
supported by the Applicant’s residency questionnaire in which she lists her
involvement with numerous Canadian organizations and says, “I also have some of
my best friends based in Canada and these include
immigrants and new citizens but also many ‘old’ Canadians.”
[25]
With
respect to the Citizenship Judge’s application of the Re Koo factors,
the principle errors are as follows:
a)
The
Citizenship Judge stated that the Applicant was present in Canada for 283 days
within the relevant four-year period. In fact, the Applicant was physically
present in Canada for a total of 691 days
and not the stated 283 days. However, the Citizenship Judge stated the correct
number of days that the Applicant was physically present in Canada in both her
factual findings and in her assessment of the fourth Re Koo factor.
Thus, this error, alone, in my view, is not sufficient to warrant a
redetermination of the application. I regard it as a typo;
b)
In
her analysis of the third Koo factor, the Citizenship Judge noted, in
part, as follows:
You
have provided insufficient evidence to establish that you intend to make Canada
your primary place of residence or that you are working to establish a domicile
which your family can refer to as a home. The onus is on you to provide
sufficient documentary evidence to establish residency. There are no credit
card transaction records, telephone records, household receipts, or daily banking
records to reflect your purchases during the relevant four-year period. Due in
part to the paucity of documentation provided to demonstrate a sustained
presence in Canada, plus the fact that you presently live in Barbados and will
continue to do so until your contract expires in 2019, it is reasonable to
conclude that you do not reside in Canada and that you may not intend to return
to Canada permanently.
The Citizenship Judge
listed the documentary evidence submitted by the Applicant at the beginning of
her Decision, but she failed to consider this evidence when she assessed
whether the Applicant intended to make Canada her primary place of residence. Although the
Applicant did not submit the passive indicia listed by the Citizenship Judge
above, there was other documentary evidence available, including the following:
-
she is a co-owner of
a house in Toronto;
-
she has made almost
monthly wire transfers to a Canadian bank account shared with her husband since
August 2001;
-
there are utility
bills (although many of the bills submitted fall outside the relevant four-year
period, there is one bill from 2004 and another from 2005);
-
there is an Ontario
health card and a letter from her doctor in Toronto
attesting to the fact that the Applicant has been his patient since 2002 and
visits him every few months.
Further, the Citizenship
Judge failed to consider that: (i) the Applicant does not own property
elsewhere; (ii) the Applicant returns to Canada after each of her absences and as frequently as
possible; and (iii) the Applicant’s stay in any other country is only temporary
and for work-related purposes. The Citizenship Judge also erred by failing to address
the Applicant’s family ties in conjunction with these other indicia of
residence which, taken together, suggest that the Applicant has the intention
of maintaining permanent roots in Canada. As stated in Re Ho, [1997]
F.C.J. No. 1747 (F.C.T.D.) at paragraph 7:
…residency
in Canada for the purposes of citizenship does not
imply full-time physical presence. The place of residence of a person is not
where that person works but where he or she returns to after work. Hence, an
applicant for citizenship who has clearly and definitively established a home
in Canada with the transparent intention of maintaining permanent roots in this
country ought not to be deprived of citizenship merely because he has to earn
his livelihood and that of his family by doing business offshore. The most
eloquent indicia of residency is the permanent establishment of a person and
his family in the country.
c)
The
most significant error, in my view, appears in the Citizenship Judge’s analysis
of the sixth Koo factor, which relates to the quality of the Applicant’s
connection with Canada and whether it is more
substantial than her connection with any other country. The Citizenship Judge observed
as follows:
There
is no question that you have performed laudable work within the global
community as a UNICEF employee. Nevertheless, you have chosen to accept
employment in countries outside Canada at a time when you knew that by doing
so, you might incur a residency shortfall when seeking citizenship. You have
been outside of Canada more often than you have been in it. As
for your family, your husband and daughters are Canadian citizens, but you will
not return to join them in Canada until 2019. By that time, the dynamics of
your family may have changed, and they may live elsewhere or under different
circumstances, or perhaps even different countries. With that in mind, on the
basis of the evidence before me, I am not persuaded that you have established a
substantial connection with Canada.
This factor requires the
Citizenship Judge to undertake a comparison to determine whether the Applicant’s
connection with Canada is more substantial than with any other country. In this
case, the comparison would be with Barbados, Iran, or any other country where the Applicant has
spent a significant amount of time or has a substantial connection. The
Citizenship Judge’s failure to do this constitutes a failure to properly apply
the facts to this part of the Koo test, which in turn raises doubts as
to whether the Citizenship Judge had a proper understanding of the law. On the
facts of this case, Canada is the only country where the Applicant can be said
to have centralized her mode of existence. This is where her children and her
family are and this is where she comes when she has a break from her demanding
international career and work for UNICEF. It is very telling, I feel, that the
Citizenship Judge failed to make the comparison between the Applicant’s
connection to Canada and her connection with
“any other country.” Had she done so, the only conclusion on the facts is that
Canada is the only country with which the Applicant has a connection, and this
would have to impact the Judge’s assessment of the quality of the Applicant’s
connection with Canada. Not to have made such
a comparison renders the Decision unreasonable, and certainly does so when
taken in conjunction with other errors;
d)
The
Judge is also highly critical of the Applicant’s response to question 13 in the
residency questionnaire and complains that the Applicant concentrates upon her
institutional and education ties, and that the Applicant does not “describe
[her] daily acclimatization to Canada, including the ways in which [she makes
it her] home, nor [does she] provide observations about the challenges of adapting
to Canada’s society and customs.” What is troubling about this response is that
question 13 in the Residence Questionnaire specifically directs applicants,
when describing social ties, to focus upon “active memberships in community or
religious organizations, volunteer groups, etc.” This is what the Applicant
did, and yet she is faulted for not doing something else. In the absence of an
explanation on this point from the Citizenship Judge, such criticism appears to
be unreasonable given the directions contained in question 13.
[26]
I
have not referred to every mistake and error made by the Judge. But what I have
referred to is, in my view, sufficient to render the Decision unreasonable.
[27]
The number
of factual errors and the misapplication of the Koo factors in this case
are of such significance that they leave me with little confidence in the
soundness of the other conclusions reached by the Citizenship Judge. Although
some of these errors alone would not be sufficient to warrant a rehearing of
the application, I am satisfied that they are cumulatively sufficient to
warrant intervention by this Court. For these reasons, the appeal is allowed.
Because of this finding, I need not consider the remaining issues raised by the
Applicant in this appeal.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
appeal is allowed and the matter is referred back to another Citizenship Judge
for re-determination.
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