Docket: T-1860-15
Citation:
2016 FC 560
Ottawa, Ontario, May 19, 2016
PRESENT: The
Honourable Madam Justice Mactavish
BETWEEN:
|
BASSEM
SALAHELDIN MOSTAFA HELMI ELDERAIDY
|
Applicant
|
and
|
MINISTER OF
CITIZENSHIP AND
IMMIGRATION
|
Respondent
|
JUDGMENT AND REASONS
[1]
Bassem Salaheldin Mostafa Helmi Elderaidy
appeals the decision of a Citizenship Judge denying his application for
citizenship on the basis that he had failed to meet the residence requirements
of the Citizenship Act. The Citizenship Judge chose to apply the
physical presence test for residency, and Mr. Elderaidy admits that he was
more than 250 days short of the 1095 days in Canada during the four years
preceding the filing of his citizenship application that is required to satisfy
this test.
[2]
Mr. Elderaidy nevertheless asserts that the
Citizenship Judge erred by failing to provide reasons for her decision to apply
the physical presence test for residency in assessing his application for
citizenship. The Citizenship Judge further erred, Mr. Elderaidy says, by
failing to first determine whether or not he had established residency in
Canada before proceeding to the day-counting exercise mandated by the physical
presence test.
[3]
I have not been persuaded the Citizenship Judge’s
decision was unreasonable. Consequently, Mr. Elderaidy’s appeal will be
dismissed.
I.
Are Reasons Required to Explain the Citizenship
Judge’s Choice of Test?
[4]
Paragraph 5(1)(c) of the Citizenship Act,
R.S.C. 1985, c. C-29, provides that a permanent resident must have “within the four years immediately preceding the date of his
or her application, accumulated at least three years of residence in Canada”.
[5]
There are three different schools of thought as
to how the residency requirement of paragraph 5(1)(c) is to be applied. The first
approach is the physical presence test that was applied in this case. First
articulated in Re Pourghasemi (1993), 62 F.T.R. 122, [1993] F.C.J. No.
232, this test simply asks whether the applicant has been physically present in
this country for the requisite three years out of four.
[6]
In contrast to the objective Re Pourghasemi
test, Re Papadogiorgakis, [1978] 2 F.C. 208, 88 D.L.R. (3d) 243, and Re
Koo, [1993] 1 F.C. 286, 59 F.T.R. 27, prescribes a more subjective,
qualitative assessment of residency. Re Papadogiorgakis asks whether an
applicant has an established residence and a strong attachment to Canada, even
if he or she has been temporarily absent from this country. Re Koo
reflects a refinement of Re Papadogiorgakis test, identifying six
questions that should be asked in order to assess the quality of an
individual’s attachment to Canada.
[7]
Because there is no appeal from Federal Court
decisions in citizenship matters, there has never been an appellate
determination as to which of these three approaches is the correct one. As a
result, this Court has determined that it is open to Citizenship Judges to
apply any one of the three accepted tests. The jurisprudence further teaches
that “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”: see Lam v. Canada (Minister of Citizenship and
Immigration), (1999), 164 F.T.R. 177 at para. 14, [1999] F.C.J. No. 410
(T.D.).
[8]
Mr. Elderaidy accepts that Citizenship
Judges have the discretion to select any one of the three accepted tests for
residency, and that he was not entitled to have the test applied that would be
the most favourable to his citizenship application. He submits, however, that
the discretion that Citizenship Judges exercise to choose one of the three
tests for residency is not unlimited, and must be explained.
[9]
Citing my decision in Cardin v. Canada
(Minister of Citizenship and Immigration), 2011 FC 29, 382 F.T.R. 164, Mr. Elderaidy
argues that Citizenship Judges must have regard to the personal circumstances
of the applicant when selecting the test to be applied in a given case. He
further submits that where the underlying rationale of a particular test is not
supported by the specific facts of the case at hand, the choice of test will be
unreasonable.
[10]
I would note, however, that Cardin was a
unique case. The Citizenship Judge in that case was preoccupied with the
question of whether Mr. Cardin had become sufficiently “Canadianized” by “rubbing
elbows” with Canadians in a variety of circumstances.
[11]
Mr. Cardin had come to Canada as a child,
and had been raised and educated in this country at both the secondary and
post-secondary levels, before going to work, in Canada, for a Canadian company.
It was in this context that I concluded that it was unreasonable for the
Citizenship Judge to find that Mr. Cardin had not become sufficiently “Canadianized” as a result of his recent business
trips outside Canada. I specifically distinguished Mr. Cardin’s case from
that of the businessman who comes to Canada, establishes a home here, and then
leaves Canada for extended periods of time in order to pursue business
opportunities abroad, which is precisely the situation in Mr. Elderaidy’s
case.
[12]
My decision in Cardin turned on its own
unique facts, including the nature of the Citizenship Judge’s concerns in that
case, and the specific wording of the decision under review. It does not stand
for the blanket proposition that Citizenship Judges must have specific regard
to the personal circumstances of applicants in selecting the residency test to
be applied in citizenship cases.
[13]
It is, moreover, unnecessary for me to determine
in this case whether, as a general proposition, Citizenship Judges are required
to have specific regard for an applicant’s personal circumstances when
selecting the test to be applied in a given case. It is apparent from the
Citizenship Judge’s reasons here that she was well-aware of Mr. Elderaidy’s
personal circumstances, as they are discussed in some detail in her decision.
Indeed, Mr. Elderaidy has not identified any circumstances relating
to his personal situation that was overlooked or ignored by the Citizenship
Judge. Given this, I am not prepared to infer that the Citizenship Judge did
not in fact have regard to Mr. Elderaidy’s personal situation when she decided
which test for residency to apply in this case.
[14]
Mr. Elderaidy also says that Citizenship
Judges have to provide reasons for their choice of test, particularly where, as
here, the Citizenship Judge has applied one or other of the qualitative tests
in other cases. These reasons need not be extensive, Mr. Elderaidy says,
and it would suffice if a Citizenship Judge were to say something along the
lines of “I believe that the strict physical presence
test best encapsulates the meaning of ‘residency’ in the Citizenship Act”.
[15]
The applicant has not provided any case
authority stating that Citizenship Judges are required to provide reasons for
their choice of tests, and the case law says otherwise: Ayaz v. Canada
(Minister of Citizenship and Immigration), 2014 FC 701 at para. 43, 459
F.T.R. 191; Arwas v. Canada (Minister of Citizenship and Immigration),
2014 FC 575 at para. 23, 464 F.T.R. 1; Sinanan v. Canada (Minister of
Citizenship and Immigration), 2011 FC 1347 at paras. 11-12, [2011] F.C.J.
No. 1646.
[16]
Notwithstanding the above jurisprudence, Mr.
Elderaidy submits that requiring reasons would promote transparency and
consistency in the decision-making process.
[17]
The problem with this argument is that the only
way that requiring reasons for the choice of test could encourage consistency
in the decision-making process would be if the existence of certain types of
circumstances dictated the choice of a particular test. This would be
inconsistent with the well-established principle that Citizenship Judges have
the discretion to choose any one of the three accepted tests for residency.
[18]
I would further note that Mr. Elderaidy’s
suggestion that a Citizenship Judge could simply state that he or she was of
the view that, for example, “the strict physical
presence test best encapsulates the meaning of ‘residency’ in the Citizenship
Act” does not in fact respond to the personal circumstances of any
individual applicant.
[19]
It is, moreover, implicit in the Citizenship
Judge’s reasons in this case that she had determined that the use of the
physical presence test was appropriate here. Consequently, I would not give
effect to this ground of appeal.
II.
Is a Citizenship Judge Required to First
Determine Whether an Applicant had Established Residency in Canada in Applying
the Physical Presence Test?
[20]
Mr. Elderaidy’s second argument is that the
Citizenship Judge erred by failing to determine whether or not he had
established residency in Canada before proceeding to the day-counting exercise
mandated by the Re Pourghasemi physical presence test for residency.
[21]
A number of the cases cited by Mr. Elderaidy
in support of this argument involve situations where one of the two qualitative
tests for residency was applied. I do not understand the respondent to disagree
that where either of these tests are applied, a Citizenship Judge is indeed
required to make a threshold determination as to whether an applicant has in
fact established residency in Canada before applying the qualitative test
chosen by the Judge.
[22]
There is some question in the jurisprudence as
to whether the two-stage inquiry is required in cases where the physical
presence test for residency is being applied. I do not need to resolve that
question in this case, however. There is no dispute that, regardless of whether
he had established his residence in Canada, Mr. Elderaidy did not come
close to satisfying the physical presence test for residency for the purposes
of the Citizenship Act. As a consequence, any error that may have been
committed by the Citizenship Judge in this regard could not have affected the outcome
of Mr. Elderaidy’s citizenship application.
III.
Conclusion
[23]
For these reasons, Mr. Elderaidy has not
persuaded me that the Citizenship Judge’s decision was unreasonable. As a result,
his appeal is dismissed.
IV.
Certification
[24]
The respondent proposes a question for
certification relating to the need for a two-stage inquiry in cases where the
physical presence test for residency is used. Mr. Elderaidy does not
oppose certification of this question. As explained above, however, I have not
found it to be necessary to finally decide this question for the purposes of
this case. As a result, the answer to the respondent’s question would not be
determinative of the outcome of the appeal and the question is thus not
appropriate for certification in this case.