Date:
20130626
Docket:
T-81-13
Citation:
2013 FC 712
Toronto, Ontario,
June 26, 2013
PRESENT: The
Honourable Mr. Justice Hughes
BETWEEN:
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ADEKUNLE OLUFEMI DINA
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Applicant
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and
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MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an appeal from a decision of a Citizenship Judge, who declined to approve
the Applicant’s application for Canadian citizenship. For the reasons that
follow I am allowing that appeal and will return the matter for redetermination
by that judge.
[2]
The
Applicant is originally from Nigeria, he together with his wife and family came
to Canada in March 2005 and were granted landed immigrant status. His wife has
a job at a university in the Toronto area and he and his wife have purchased a
home in the Toronto area. The Applicant has a business in which he travels to Nigeria frequently. The citizenship judge had concerns as to the credibility of the
Applicant as to how many days he was actually not in Canada, however, even accepting
the Applicant’s evidence at face value, as the Citizenship Judge did, the
Applicant had a shortfall of 255 days from the number of days required by
section 5(1)(c) of the Citizenship Act RSC 1985, c. C-29.
[3]
The
Citizenship Judge elected to apply the test respecting citizenship as
established in Re Pourghasemi, (1993) F.C.J. No. 232 and determined, on
that basis, that the Applicant did not meet the requirements of section 5(1)(c)
of that Act. I repeat a portion of his decision:
The applicant insists that he was absent from Canada on seven occasions totalling 620 days only. This, in itself, gives the applicant a
shortfall of 255 days. However, I am not satisfied that he was not out of Canada on more than 620 days. I believe that applicant has a credibility issue as to the
days he was out of Canada.
On the balance of probabilities, and based on my
assessment of the applicant’s testimony, as well as my careful consideration of
the information and evidence before me, that, while the applicant did declare
addresses in Canada during his entire relevant time period, I am not satisfied
that he was actually living – was physically present – in Canada on the number
of days he claims to have been.
I have decided to use the strict test as established
by the Honourable Mr. Justice Muldoon in Re Pourghasemi – (1993) F.C.J. No. 232
(OL)(T.D.)
[4]
Applicant’s
Counsel before me argued that had the Citizenship Judge elected to apply the
test in Re Koo, [1993] 1 FC 286, the Applicant would have satisfied
those criteria and would have been entitled to Canadian citizenship.
[5]
The
jurisprudence in this area was recently reviewed by Chief Justice Crampton of
this Court in Huang v Canada (Minister of Citizenship and Immigration),
2013 FC 576. At paragraph 2 of his reasons he recognized that the jurisprudence
needed clarification, possibly by legislative amendment or by a reference to
this Court under section 18.3(1) of the Federal Courts Act. He wrote:
2 The
optimal resolution of this state of affairs would be for Parliament to
legislate a clearer test for citizenship under the Citizenship
Act, RSC 1985 c C-29. The Court has noted this on several
occasions (see, for example, Harry (Re) [1998]
FCJ No 189, at paras 15-26; Imran v Canada (Minister of Citizenship and Immigration), 2012
FC 756, at para 32 [Imran]; Hao
v Canada (Minister of Citizenship and Immigration), 2011
FC 46, at para 50 [Hao]; and Ghaedi v Canada (Minister of Citizenship and Immigration),
2011 FC 85, at para 16). Another potential approach would be for a citizenship
judge to bring a reference to the Court under subsection 18.3(1) of the Federal Courts Act,
RSC 1985, c F-7 [FC Act].
Among other things, this would provide an opportunity for the issue to then be
brought before the Federal Court of Appeal, pursuant to paragraph 27(1)(d) of
the FC Act,
to finally settle the divergence in this Court's jurisprudence that has
persisted now for several decades.
[6]
The
Chief Justice reviewed the state of jurisprudence in this Court and, at
paragraphs 36 to 44 determined that there were three different tests for
citizenship, any one of which a Citizenship Judge could elect to apply. I
repeat what he wrote at paragraphs 37 and 38:
37 As
noted above, the jurisprudence of this Court has established three tests for
citizenship. These are generally known as the "centralized mode of
living" test, the Koo test (which
focuses upon where the applicant "regularly, normally or customarily
lives") and the "physical presence" test.
38 It
is now well established that before any of these tests can be applied, an
applicant for citizenship must establish that he or she is physically resident
in Canada (Takla, above, at para 50; Martinez, above, at para 9; Hao, above, at para 24; Elzubair, above, at para 13).
[7]
Turning
to the present case, the Citizenship Judge was not wrong in stating that, even
on the Applicant’s own submissions he was 255 days short, and was not wrong in
applying the “physical presence” that of Pourghasemi, supra.
Nonetheless, I will return the matter for re-determination.
[8]
My
reasoning for returning the matter is that persons such as the Applicant here
should not be put in a position of doubt as to what test a Citizenship Judge
will be applying. The three different tests could yield a different result on
the same set of facts. It is a denial of natural justice not to reveal to the
Applicant, prior to the time that the matter is to be determined, which of the
three tests will be applied by the Judge. In that way the Applicant, and
Applicant’s Counsel will know the case to be met.
[9]
The
messy state of the jurisprudence is largely a result of inconsistent and
contradictory jurisprudence in the Federal Court for which this Court must bear
the blame. No appeal from decisions such as this one is possible, however if
the Citizenship Commission were to refer a question to this Court under section
18.3(1) of the Federal Courts Act, any decision of this Court could be
appealed to the Federal Court of Appeal.
[10]
Therefore,
I will return the matter for redetermination by the same judge. That judge is
to give adequate notice to the Applicant as to which test will be applied. That
judge is strongly urged to consider a section 18.3(1) reference. I will not
make any order as to costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
appeal is allowed;
2. The
matter is returned for redetermination by the same Citizenship Judge who shall
give adequate notice as the test to be applied;
3. The
Citizenship Commission is urged to make a reference as to the proper test to
this Court under section 18.3(1) of the Federal Courts Act; and
4. No
Order as to costs.
“Roger
T. Hughes”
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