Dockets: T-1651-13
T-1652-13
Citation:
2014 FC 575
Ottawa, Ontario, June 17,
2014
PRESENT: The
Honourable Mr. Justice LeBlanc
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Docket: T-1651-13
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BETWEEN:
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MIGUEL ANGEL SLIKAS ARWAS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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Docket: T-1652-13
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AND
BETWEEN:
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KARINE MARIE CHRISTIANE WACHTER
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
These are appeals brought under section 21 of
the Federal Courts Act, RSC 1985, c C-7, and paragraph 14(5) of the Citizenship
Act, RSC 1985, c C-29, against the decision of a citizenship judge denying
the applicants’ applications for Canadian citizenship on the ground that they
do not meet the residency requirement as defined by paragraph 5(1)(c) of
the Citizenship Act (the Act).Given the overlap of the facts and
arguments, these two appeals were heard, and are decided, together.
I.
Background
[2]
The applicants are husband and wife. Mr. Arwas is
a citizen of Venezuela. Ms. Wachter is a French citizen. Both became permanent
residents upon arrival in Canada on April 13, 2006. They came from Trinidad and Tobago where the husband, a petroleum engineer, was employed. They applied for
Canadian citizenship on December 15, 2010. As part of the conditions they had
to meet in order to be granted Canadian citizenship, they needed to accumulate,
within the four years immediately preceding the date of their citizenship
applications, at least three years of residence in Canada.
[3]
That condition, embedded in paragraph 5(1)(c)
of the Act, reads as follows:
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5. (1) The Minister shall grant
citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(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 :
a) en
fait la demande;
b) est
âgée d’au moins dix-huit ans;
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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[4]
During the four year residency assessment period
applicable to them, which was from December 15, 2006 to December 15, 2010, the
applicants were physically present in Canada a total of 866 days, in the case
of Mr. Arwas, and of 879 days, in the case of Ms. Wachter. Those figures are
not contested.
[5]
The applicants’ citizenship applications were
dismissed on August 7, 2103. Having opted for an interpretation of paragraph
5(1)(c) of the Act which requires being physically present in Canada for
the minimum amount of time contemplated that provision (1,095 days out of
1,460), the citizenship judge found the applicants to be well short of that
minimum threshold. As a result, he rejected their applications on the ground
that they did not meet the Act’s residency requirement.
[6]
The applicants claim that the citizenship judge
committed a reviewable error by mixing qualitative and quantitative factors in
his analysis. As the Court understands it, the applicants contend that the
judge erred by resorting to qualitative factors in his quantitative analysis,
something he need not, and could not, do. Alternatively, they claim that since
he did resort to such factors, the citizenship judge was bound to proceed to a
qualitative analysis of the residency requirement, something which might have
allowed them to meet that requirement despite not having been physically
present in Canada for at least 1,095 days out of 1,460 immediately preceding
the filing of their citizenship applications.
[7]
The applicants seek an order quashing the
citizenship judge’s decision and sending the matter back for reconsideration by
a different citizenship judge. They also seek full costs pursuant to Rule 400
of the Federal Courts Rules, SOR/98-106.
[8]
For the reasons that follow, these two appeals
must fail.
II.
Issue and Standard of Review
[9]
The only issue in these appeals is whether the
citizenship judge erred in concluding that the applicants did not meet the
Act’s residency requirement and by dismissing, as a result, their applications
for Canadian citizenship.
[10]
Appeals from decisions of citizenship judges are
not judicial review proceedings per se although they are governed by the
same rules of procedure (Rule 300(c) of the Federal Courts Rules).
Such appeals used to take the form of de novo proceedings but it is no
longer the case as of 1998. Before Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, which reshaped the standard of review doctrine applicable in
the field of administrative law, there was a consensus amongst the judges of
this Court that the standard of review on appeal of citizenship judges’
decisions regarding the residency requirement was reasonableness simpliciter.
It was understood that the question of whether a person meets that requirement
was a mixed question of fact and law for which citizenship judges were owed
some deference given their special degree of knowledge and experience (Wang
v Canada (Minister of Citizenship and Immigration), 2005 FC 981, at para 6,
[2005] FCJ No 1204 (QL); Rizvi v Canada (Minister of Citizenship and Immigration),
2005 FC 1641 at para 5, [2005] FCJ No 2029 (QL); Canada (Minister of
Citizenship and Immigration) v Takla, 2009 FC 1120 at para 25, 359 FTR
248).
[11]
As a result of Dunsmuir, above, the
reasonableness simpliciter standard, together with the patent unreasonableness
standard, were collapsed into a single form of reasonableness review, the
standard of reasonableness (Dunsmuir, above at paras 44 and 45; Takla,
above at para 30).
[12]
The applicants claim that, when the residency
requirement in a citizenship appeal is at play, the standard of reasonableness
calls for ‘qualified deference’.
[13]
For the past three decades, there has been an
ongoing debate within this Court as to what paragraph 5(1)(c) of the Act
exactly means. This, in turn, has generated a debate as to the applicable
standard of review of a citizenship judge’s decision to opt for the
interpretation that will form the basis of his or her analysis of the residency
requirement in a given case. Some members of this Court say that this standard
is correctness (Donohue v Canada (Minister of Citizenship and Immigration)
2014 FC 394 at para 13, [2014] FCJ No 443 (QL); El Ocla v Canada (Minister
of Citizenship and Immigration) 2011 FC 533 at para 18, 289 FTR 241; Dedaj
v Canada (Minister of Citizenship and Immigration) 2010 FC 777, 372 FTR
61). Others say it is reasonableness (Chowdhury v Canada (Minister of
Citizenship and Immigration) 2009 FC 709 at para 24, 347 FTR 76; Raad v
Canada (Minister of Citizenship and Immigration) 2011 FC 256 at para 21,
[2011] FCJ No 306 (QL); Gavrilutav Canada (Minister of Citizenship and
Immigration) 2013 FC 705 at paras 24 to 27, [2013] FCJ No 306 (QL); Shubeilat
v Canada (Minister of Citizenship and Immigration) 2010 FC 1260 at para 14,
381 FTR 63).
[14]
The competing jurisprudential schools that have
emerged from that debate have been described this way by Madame Justice Snider,
in Sinanan v Canada (Minister of Citizenship and Immigration) 2011 FC
1347, [2011] FCJ No 1646 (QL):
[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 “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.
[15]
Recently, Chief Justice Crampton, in Huang v
Canada (Minister of Citizenship and Immigration) 2013 FC 576, [2013] FCJ No
629 (QL), revisited the issue and observed that the jurisprudence of this Court
pertaining to these three tests remains divided and unsettled with the result
that deference should be accorded to a citizenship judge’s decision to apply
any of these tests. He held that this approach was consistent with this Court’s
dominant view that the standard to be applied in reviewing citizenship
decisions is reasonableness (Huang, above at paras 24 to 26).
[16]
In such context, I share the view that the
standard applicable to the review of citizenship decisions is reasonableness,
without need for any sort of qualification, and that this standard applies to
the choice of the residency test made by the citizenship judge. This means, as
is well established, that the review analysis is concerned with the existence
of justification, transparency and intelligibility within the decision-making
process and also with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir,
above at para 47; Chowdhury, above at para 28; Raad, above at
para 22).
[17]
It is true that Parliament, when it enacted
paragraph 5(1)(c) of the Act, intended one meaning in particular.
However, ascertaining the legislator’s intent is not always an easy task as evidenced by the complexity of our
rules of statutory construction. My own view on this is that Parliament meant
that the residency requirement shall be met by being physically present in
Canada for a minimum period of time, ensuring thereby that an applicant’s
establishment in Canada is assessed by way of an objective marker that does
allow for absences from Canada but that does it while establishing clear limits
with regards to the amount of time an applicant can spend outside Canada. In
this regard, I fully endorsed the reasoning of Mr. Justice Rennie in Martinez-Caro
v Canada (Minister of Citizenship and Immigration) 2011 FC 640, 391 FTR
138, and that of Mr. Justice Muldoon in Pourghasemi (Re) (FCTD) [1993]
62 FTR 122.
[18]
That being said, in the
area of statutory interpretation, as in others, competing views are the norm,
not the exception, and the resolution of these issues is normally assured
through the judiciary’s appeal system. Here, however, as the Chief Justice and
other members of this Court have pointed out on several occasions, Parliament
has made the conscious choice that there be no appeal of a decision of this Court
on an appeal from a decision of a citizenship judge (see paragraph 14(6) of the
Act).
[19]
This has consequences. Here, this means that three reasonable interpretations of the Act’s residency requirement “that have a long and rich heritage in this
Court’s jurisprudence” (Huang, above at para 25), have co-existed for quite some time without being put to the test
through an appeal process.
[20]
But this is not inconsistent
with the stare decisis principle, which was created, as is well known, to ensure consistency and
certainty in the law. This principle, as it is understood and applied today in Canada, means only that prior decisions of higher courts are binding on lower courts of the
same jurisdiction, for neither the Supreme Court of Canada nor many of the
country’s courts of appeal consider themselves bound by their own previous
decisions. For lower courts, this means that they are free to analyze the
reasons given in their own previous decisions and to decide whether to apply
the precedent or to distinguish the rule contained therein, including matters
of statutory interpretation (Woods Manufacturing Co. Ltd. v The King, [1951] S.C.R. 504 at p 515, 1951
CanLII 36 (SCC); Régie des
rentes du Québec v
Canada Bread Company Ltd. (2013), 2013
SCC 46 at para 63, [2013] 3 S.C.R. 125; Corlac Inc. v Weatherford Canada Ltd, 2012 FCA 261 at para 18, [2012] FCJ No 1295 (QL).
[21]
Therefore, as long as Parliament does not
legislate to clarify the citizenship residency test or to create some form of
an appeal process, or that this Court does not settle on one interpretation of
the Act’s residency requirement, therefore providing for a unique test and
analysis in this area, the reality of this Court’s jurisprudence is that it
offers citizenship judges three possible tests when assessing whether a
citizenship applicant meets that requirement. In these circumstances, it can
hardly be said that a citizenship judge’s decision to opt for one of these
three tests does not fall within a range of possible, acceptable outcomes which
are defensible in respect of the law.
[22]
This situation is less than optimal from the
standpoint of ensuring consistency and certainty in the law but this was
foreseeable when Parliament opted to invest this Court with the final say in
citizenship matters. Some say that it is somewhat incongruous that the outcome
of citizenship applications be determined on analysis and tests that differ
from one judge to the next (Takla, above at para 47). As I said, this is
far from a perfect situation but I nevertheless see nothing wrong in principle
to the present state of affairs.
[23]
I therefore join ranks with those of my
colleagues who share the view that citizenship judges are entitled to choose
which test they desire to use among the three tests developed by this Court and
not be in error for choosing one over the other (Choudhury, above at
paras 71 and 72; Pourzand v Canada (Minister of Citizenship and Immigration)
2008 FC 395 at para 16, [2008] FCJ No 485 (QL); Xu v Canada (Minister of
Citizenship and Immigration) 2005 FC 700 at paras 15 and 16, [2005] FCJ No
868 (QL); Rizvi v Canada (Minister of Citizenship and Immigration) 2005
FC 1641 at para 12, [2005] FCJ No 2029 (QL); Shubeilat, above at para
30). That choice does not have to be rationalized (Sinanan, above at
para 11); it is a matter of discretion (Gavriluta, above at para 27).
[24]
In the end, citizenship judges are called upon
to apply the chosen test consistently and to reach in any particular case a
conclusion that falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law (Irani, above at para
14).
[25]
The role of this Court, in reviewing such
decisions, is therefore not to substitute its opinion for that of the
citizenship judge but to assess whether that judge applied the residency test
chosen properly and in a coherent fashion (El Falah v Canada (Minister of
Citizenship and Immigration) 2009 FC 736, at para 14; Shubeilat,
above at para 15).
III.
Analysis
[26]
As indicated above, the applicants claim that
the citizenship judge erred in assessing the residency requirements by mixing
qualitative and quantitative factors. More particularly, they contend that the
judge was not entitled to resort to qualitative factors in his quantitative
analysis, namely to facts outside the relevant residency assessment period.
Alternatively, they say that having resorted to such factors, the citizenship
judge was bound to proceed to a qualitative analysis of their residency
situation, which he failed to do.
[27]
The applicants are right when they assert that
it is a reviewable error for a citizenship judge to assess the residency
requirement in a given case on the basis of more than one test or to proceed to
a quantitative or physical presence analysis by counting absences from Canada that occurred outside the relevant assessment period.
[28]
However, this is not what happened in this case.
[29]
First, it is clear that the citizenship judge
opted to assess the residency requirement on the basis of one test and one test
only, which is that of physical presence developed in Pourghasemi, above.
The citizenship judge’s decision in this regard is transparent and
intelligible. There is no mention whatsoever in his analysis of qualitative
factors. Furthermore, it is clear that his quantitative assessment was limited
to the four years immediately preceding the date of the applicants’ citizenship
applications, that is to the period of December 15, 2006 to December 15, 2010.
It is worth in this regard reproducing that portion of the decision:
“Analysis:
In deciding to whether you satisfy the residence
requirement of Section 5(1)(c) of the Act, I have chosen to adopt the
analytical approach used by the Honourable Mr. Justice Muldoon in Re
Pourghasemi. In Pourghasemi, [1993] F.C.J. No. 232 (T.D.), Muldoon
J. considered that it was necessary for a potential citizen to establish that
he or she has been physically present in Canada for 1,095 days during the
relevant four-year period.
“It is clear that the purpose of paragraph
5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship
has become, or at least has been compulsorily presented with the everyday
opportunity to become, “Canadianized”. This happens by “rubbing elbows” with
Canadians in shopping malls, corner stores, libraries, concert halls, auto
repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and
temples – in a word wherever one can meet and converse with Canadian – during
the prescribed three years. One can observe Canadian society for all its
virtues, decadence, values, dangers and freedoms, just as it is. That is little
enough time in which to become Canadianized. If a citizenship candidate misses
that qualifying experience, then Canadian citizenship can be conferred, in
effect, on a person who is still a foreigner in experience, social adaptation,
and often in thought and outlook. If the criterion be applied to some
citizenship candidates, it ought to apply to all.
…
So those who would throw in their lot with
Canadians by becoming citizens must first throw in their lot with Canadian by
residing among Canadians, in Canada, during three of the preceding four years,
in order to Canadianize themselves. It is not something we can do while abroad,
for Canadian life and society exist only in Canada and nowhere else.”
After carefully reviewing all the documentary
and oral evidence presented by you at the hearing, I am not satisfied that you
meet the residence requirement of the Citizenship Act. Unfortunately, the
length of time you have been absent from Canada during the period under review
is substantial. In the four years previous to the date of your application, you
were present in Canada only 865 days, and you were absent 595 days. You are
short a significant 230 days of the minimum 1,095 days required by Section
5(1)(c) of the Citizenship Act. The time you have spent in Canada is insufficient to demonstrate that you fulfil the intent of Act.
I have no doubt you might eventually become an
excellent Canadian citizen. I regret, however, I cannot approve your
application for citizenship. When you meet the residence requirement of the
Citizenship Act, I invite you to consider re-applying.”
[30]
The present case is distinct from the two main
cases relied upon by the applicants, Chowdhury, above, and Cheung v Canada (Minister of Citizenship and Immigration) 2012 FC 348, [2012] FCJ No 428 (QL).
Indeed, in both cases, the citizenship judges failed to clearly state the
residency test they were applying while there were mentions of both
quantitative and qualitative factors in the actual analysis. Here, not only was
the test used by the citizenship judge clearly stated but the applicants also
admit, at paragraph 22 of their written submissions, that the citizenship judge
did not take into account any qualitative factors and did not, as a result,
proceed to an assessment of their ties and connections with Canada.
[31]
What is clear also from the impugned decision is
that the citizenship judge, contrary to the applicants’ assertions, did not
consider dates outside the relevant residency assessment period for the
purposes of establishing whether the applicants had met the physical presence
test.
[32]
The judge did provide, in describing the
evidence that was before him, a summary of the husband’s employment history,
which was the main reason why the applicants were in and out of the country on
a certain number of occasions from the date they landed in Canada in April 2006 to the husband’s transfer to Spain in March 2011. However, there is no
indication whatsoever that the citizenship judge counted absences outside the
relevant residency assessment period in order to conclude as he did on the
applicants’ failure to meet the residency quantitative test. It is not an error
for citizenship judges to refer to dates outside relevant residency assessment
period, provided they do not actually count them in their quantitative analysis
(Sotade v Canada (Minister of Citizenship and Immigration) 2011 FC 301
at para 15, [2011] FCJ No 383 (QL)).
[33]
Likewise, the case of Raad, above, is of
no assistance to the applicants in this regard. In that case, the citizenship
judge had actually counted absences outside the relevant residency period and
had, on top of that, inaccurately assessed the number and length of these
absences. This is not the case here. The same can be said of Shakoor v Canada
(Minister of Citizenship and Immigration) 2005 FC 776, [2006] FCJ No 972
(QL), where it was unclear whether the citizenship judge in that case had taken
into account evidence of absences outside the relevant residency assessment
period. Again, this is not the case here.
[34]
Finally, the applicants’ argument that the
citizenship judge failed to consider qualitative factors is without merit. This
contention is based on the fact that the applicants were required by a
citizenship officer to fill a Residence Questionnaire. This was done one year
prior to their interview before the citizenship judge. This questionnaire is a
standardized document that is routinely sent to citizenship applicants who do
not appear to have accumulated the minimum number of days of physical presence
in Canada.
[35]
This is entirely consistent with the way the
processing of applications for Canadian citizenship is set up in the Act and
the Citizenship Regulations, SOR/93-246. It is the
Minister, through citizenship officers, who gathers the information citizenship
applicants have the onus of providing and causes to be commenced
the inquiries necessary to determine whether they meet the requirements of the
Act (Citizenship Regulations, above section 11). Section 17 of the Act even
empowers the Minister to suspend the processing of a citizenship application
where he is of the opinion that there is insufficient information to ascertain
whether an applicant meets the requirements of this Act.
[36]
It is only when those inquiries are completed that
a citizenship application and the materials in support of it is referred to a
citizenship judge for consideration (Citizenship
Regulations, above at subsection
11(5)).
[37]
Consistent with that regulatory process, the
Residence Questionnaire was sent to the applicants in this case way before the
matter was referred to the citizenship judge. Although this questionnaire
sought some information of a qualitative nature, this is not indicative, and
cannot be indicative, of how and on what basis the citizenship judge was to
assess the residency requirement. This was the first of a two-step process
leading to the referral of the applicants’ file to the citizenship judge. Also,
no legitimate expectations that the applicants’ applications would be reviewed
by way of a qualitative test could reasonably flow from this process (Canadian
Union of Public Employees (CUPE) v Ontario (Minister of Labour), 2003 SCC
29 at para 131, [2003] 1 S.C.R. 539; Donohue, above at paras 31 and 32).
[38]
The information gathering process which precedes
the referral of a citizenship application to a citizenship judge for
consideration cannot have a binding effect on the way the application is to be
decided. Once seized of the matter, it is up to the citizenship judge to opt
for the test he wishes to apply and to require from the applicant further
evidence, if he or she feels there is a need for it.
[39]
In the present case, the citizenship judge was
therefore under no obligation to conduct an analysis of the applicants’
residency situation by way of a qualitative test. There was no reviewable error
on his part by not doing so.
[40]
The same can be said of the notes taken by the
citizenship judge. There was nothing wrong for the judge
in providing in his notes an overview of the status of various aspects of the
applicants’ application (Zheng v Canada (Minister of Citizenship and Immigration) 2007 FC 1311 at para 11, [2007] FCJ No 1686 (QL)). This did not
change the fact that he clearly and transparently opted to dispose of the
applicants’ applications on the basis of the physical presence test.
[41]
The two appeals are therefore dismissed. Since
the respondent did not seek costs, none will be awarded.
[42]
These reasons will be filed in Court file number
T-1651-13 and a copy placed in Court file number T-1652-13.
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