Docket: T-2003-15
Citation:
2016 FC 616
Ottawa, Ontario, June 2, 2016
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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BARBARA
MARTINEZ D BADULESCU
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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
I.
Introduction
[1]
The Applicant seeks judicial review of a
decision rendered by a Citizenship Judge on October 7, 2015, denying her application
for Canadian citizenship on the ground that she did not meet the residence
requirement pursuant to paragraph 5(1)(c) of the Citizenship Act, RSC,
1985, C-29 (the Act), as amended, which governed her application at the time.
[2]
The Applicant’s main contention is that the
Citizenship Judge breached the duty of procedural fairness by failing to advise
the Applicant of the residency test to be applied to her case so
that she would know the case to meet and by refusing her the assistance of an
interpreter at her Citizenship hearing.
[3]
For the reasons that follow, the appeal is
dismissed.
II.
Background
[4]
The Applicant is a citizen of Mexico. She entered Canada on July 25, 2004 and became a permanent resident on March 1, 2007 after
having been sponsored by her husband. Her husband and two children are Canadian
citizens.
[5]
The Applicant applied for Canadian citizenship
on April 8, 2012. The relevant four year period for assessing residency is,
therefore, April 8, 2008 to April 8, 2012. In a letter covering her
citizenship application package, the Applicant acknowledged that she had
lengthy absences from Canada within that period and fell short, as a result, of
the required days of physical presence.
[6]
The Applicant attended a hearing before the
Citizenship Judge on September 14, 2015. The Citizenship Judge allegedly
questioned the Applicant exclusively on the qualitative nature of her residence
in Canada and did not inform the Applicant, at any time during the hearing,
that the Applicant’s shortfall of days physically present in Canada was a
concern.
[7]
Relying on Re Pourghasemi, [1993] FCJ No
232 [Pourghasemi], the
Citizenship Judge found on a balance of probabilities, that the Applicant did
not meet the residence requirement pursuant to paragraph 5(1)(c) of the Act.
According to a citizenship officer’s calculations, which the Citizenship Judge
accepted, the Applicant had 479 days of physical presence in Canada during the relevant period and 981 days of absence. This equates to a shortfall of 616 days
from the minimum 1095 day requirement of physical presence.
[8]
As indicated previously, the Applicant submits
that the Citizenship Judge breached the rules of procedural fairness in three
ways:
- by failing to
disclose the applicable citizenship test prior to the hearing;
- by depriving
her, as a result, of an opportunity to address the Citizenship Judge’s
concerns regarding her physical presence in Canada, including the concerns
regarding her ICES traveler history report which records a traveller’s
entries into Canada; and
- by refusing the
Applicant’s husband to act as an interpreter during the hearing.
[9]
The Applicant further contends that the
Citizenship Judge committed a reviewable error by conflating the quantitative
and qualitative residency tests as evidenced by the fact that she conducted a
liberal or qualitative assessment at the hearing, and then applied the
quantitative Pourghasemi test in her decision.
III.
Issue and Standard of Review
[10]
The issue to be determined in this case is
whether the Court should interfere with the Citizenship Judge’s decision on the
basis that it was rendered in violation of the rules of procedural fairness, as
contended by the Applicant, or that it is the result of a misapplication of the
applicable law respecting the residency requirement.
[11]
The standard of review that applies to a
Citizenship Judge’s analysis of whether a person meets the residency
requirements pursuant to paragraph 5(1)(c) the Act is that of reasonableness as
it raises a question of mixed fact and law (El-Khader v Canada (Citizenship
and Immigration, 2011 FC 328, at para 10, 386 FTR 142; Raad v Canada
(Citizenship and Immigration), 2011 FC 256, at para 21; Haddad v Canada
(Citizenship and Immigration), 2014 FC 977, at para 18; Saad v Canada
(Citizenship and Immigration), 2013 FC 570, at para 18, 433 FTR 174; Huang
v Canada (Minister of Citizenship and Immigration), 2013 FC 576, at para 13
[Huang]).
[12]
Questions related to procedural fairness are reviewable on the
correctness standard (Huang, at para 11; Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12, at para 43, [2009] 1 S.C.R. 339).
IV.
Analysis
[13]
I will deal first with the Applicant’s contention that the Citizenship
Judge conflated the quantitative and qualitative residency tests.
[14]
This Court’s case law has established that a Citizenship Judge may rely
on one of three tests when assessing whether an applicant has met the residency
requirement under the Act. The first test was established in Pourghasemi and
involves the strict counting of days of physical presence in Canada, which must total 1095 days in the four years preceding the application. The second test is
generally known as the Re Papadogiorgakis test. This test recognizes
that a person can be a resident of Canada, even while temporarily absent, if
there remains a strong attachment to Canada (Re Papadogiorgakis, [1978]
2 FC 208 (FCTD); Canada (Citizenship and Immigration) v Bayani, 2015 FC
670, at para 21). The third test is a more generous qualitative test and
defines residence as the place where one has centralized his or her mode of
living (Re: Koo, [1993] 1 FC 286 (FCTD)).
[15]
It has also been well-established that “while a Citizenship Judge may choose to rely
on any one of the three tests, it is not open to him or her to “blend” the
tests” (Tulupnikov v Canada (Minister
of Citizenship and Immigration), 2006 FC 1439, at para 17).
[16]
In my view, it is clear that the Citizenship Judge did not blend
the tests in the case at hand. The reasons for the Citizenship Judge’s decision
demonstrate that the only test relied on was the test established in Pourghesemi.
The reasons for decision are unequivocal in this respect. The fact that
the Applicant presented a significant shortfall from the
minimum 1095 day requirement of physical presence in Canada is not in dispute. Therefore, it was reasonably open to the Citizenship Judge to conclude as
she did. In other words, her decision falls squarely within the range of
possible, acceptable outcomes defensible on the facts and the law (Dunsmuir
v New Brunswick, 2008 SCC 9, at para 47, [2008] 1 S.C.R. 190). The fact that
the Citizenship Judge asked the Applicant questions about her life in Canada
during the hearing does not, in of itself, demonstrate that the Citizenship
Judge misapprehended the strict residency requirement test. Given the state of
this Court’s jurisprudence on the residency test, it was reasonably open to the
Citizenship Judge to ask these questions even if, ultimately, she opted to
apply the quantitative test.
[17]
This brings me to the Applicant’s procedural
fairness concerns, beginning with her main contention in this regard which is
that the Citizenship Judge should have informed the Applicant of the test to be
applied so that she could know the case to be met. In this respect, the
Applicant relies on Dina v Canada (Citizenship and Immigration), 2013 FC
712 [Dina] and Miji v Canada (Citizenship and Immigration), 2015
FC 142 [Miji] for the principle that a Citizenship Judge has an
obligation to explicitly inform an applicant prior to a hearing which of the
three citizenship tests will be applied.
[18]
This principle was very recently distinguished
by my colleague Justice Catherine Kane in Fazail v Canada (Citizenship and Immigration), 2016 FC 111 [Fazail]. Further to an analysis of the
factors enumerated in Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, Justice Kane concluded the following on the
extent of the duty of procedural fairness owed to citizenship applicants:
[46] […] the duty of procedural fairness
owed to applicants by Citizenship Judges is at the lower end of the spectrum.
Even at the lower end of the spectrum, the individual affected must know the
case he or she has to meet and have an opportunity to respond to the case to be
met. However, based on the Baker analysis, the scope of the duty of
procedural fairness does not extend beyond this.
[19]
In that case, Justice Kane found that the duty
of procedural fairness had been met despite the Citizenship Judge failing to
inform the applicant of the test to be applied since the applicant made
submissions to the Citizenship Judge asking that the Koo test be
applied. Justice Kane found that the applicant’s submissions in this regard
demonstrated that the applicant in that case knew the case to be met and was
provided with the opportunity to make submissions.
[20]
Given that in a letter attached to her
citizenship application, the Applicant requested the Citizenship Judge to take
qualitative factors into account and was then provided with an opportunity to
expand on these factors in greater detail during the interview, I am of the
opinion that no breach of procedural fairness occurred. The Applicant was well
aware that she did not meet the quantitative factors and as a result
specifically requested the Citizenship Judge to consider the fact that her
husband and two children are Canadian citizens and that the nature of her
position requires her to travel extensively outside of the country. Moreover,
the Applicant indicated in her affidavit that she discussed the following with
the Citizenship Judge:
- Her employment
with the Vancouver Film School since 2008 and that her positions at the
school required her to travel extensively;
- That her
husband, son and daughter are Canadian citizens, who are studying and
living in Canada;
- That she was
the primary income-earner for her family at the time her application was
processed as her husband and children were full-time students;
- That all her
assets, including two properties and a vehicle, are in Canada;
- That her family
doctor and dentist are in Canada; and,
- That the
Applicant is the Secretary of a Canadian corporation.
[21]
I acknowledge as Justice Kane did in Fazail and
Justice Locke did in Miji, the unfortunate results of the uncertainty in
the law which permits a Citizenship Judge to apply different tests which could
lead to different outcomes. As the Applicant knew the case to be met and was
given an ample opportunity to respond, the Court’s hands are tied in this regard.
[22]
Clearly, the Applicant was hoping that one of
the two qualitative residency tests would be applied to her circumstances as
the quantitative test was, for all intent and purposes, out of reach. She
clearly had expectations in this regard but unfortunately for her, in the
citizenship context as it stood before the amendments brought to the Act in
2014 changing the residency requirement and focus on physical presence, the
fact that such expectations were not met is neither procedurally
unfair nor did it create a right to a particular substantive outcome.
[23]
The Applicant further claims that the
Citizenship Judge failed to provide her with an opportunity to address her
concerns regarding her physical presence in Canada. In my opinion, the fact
that the Citizenship Judge did not question the Applicant regarding her
physical presence in Canada does not constitute a breach of procedural
fairness. The Applicant admitted in her citizenship application package that
she had a shortfall of 539 days from the 1095 day requirement. Even if the
Applicant were given an opportunity to address the Citizenship Judge’s concerns
in this respect, it would have no material consequence since it is not
contested that the Applicant did not meet the requisite days of physical
presence in Canada during the relevant period.
[24]
For the same reasons, I am of the view that the
Citizenship Judge’s failure to disclose the ICES traveler history report is
immaterial (Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum
Board, [1994] 1 S.C.R. 202, at 228-229).
[25]
Finally, the Applicant claims that the
Citizenship Judge’s refusal to let her husband act as an interpreter during the
hearing was procedurally unfair and breached her protected right to an
interpreter. This Court has established that candidates for Canadian
citizenship “may have legitimate expectations […] that
Citizenship Judges will follow the guidance provided by the CIC policy manual
prescribing procedures for citizenship hearings” (Indran v Canada
(Citizenship and Immigration), 2015 FC 412). Section 3 of the guideline
recognizes that applicants have the right to an interpreter pursuant to section
14 of the Canadian Charter of Rights and Freedoms and section 2(g) of
the Canadian Bill of Rights (CP 13 Administration, dated January 17, 2008
[CP 13]). Section 3.7 of the guideline indicates that the decision to
permit a language interpreter at a hearing “rests with
the citizenship judge” (CP 13). I cannot therefore agree with the
Applicant’s submissions that the simple refusal to let the Applicant’s husband
in the room was enough to breach her “constitutionally
protected” right to an interpreter.
[26]
The Applicant relies on R v Tran, [1994]
2 SCR 951 (Tran) in this regard. I find that this matter, which was
rendered in the context of a criminal proceeding, has no bearing on the issue
at bar. Indeed, the Supreme Court of Canada in that case cautioned that the
teachings in Tran relate “specifically to the
right of an accused in criminal proceedings” and “must not be taken as necessarily having any broader
application” (at para 12). Specifically, the Supreme Court left open for
future consideration “the possibility that different
rules may have to be developed and applied to other situations which properly
arise under s. 14 of the Charter — for instance, where the proceedings in
question are […] administrative in nature” (Tran, at para 12).
Given the aforementioned, I do not agree with the Applicant’s submissions that
the right to an interpreter during a hearing with a Citizenship Judge is, as
she claims, absolute and that she is therefore under no obligation to show that
she was prejudiced by the Citizenship Judge’s refusal to let her husband act as
an interpreter.
[27]
Moreover, I am not satisfied that the absence of
an interpreter breached the Applicant’s right to procedural fairness in the
circumstances of this case. The Applicant states in her affidavit that the
Citizenship Judge told her that her husband could not be with her during the
interview before she was able to inform the Citizenship Judge that she intended
for her husband to act as her interpreter. The Applicant was interviewed by the
Citizenship Judge for approximately an hour and a half. During this time, the
Applicant did not object to not having an interpreter nor request for one.
Yet, the Applicant’s affidavit suggests that the Applicant was provided with an
opportunity to be heard and meet her case. As is well-established, procedural
fairness concerns must be brought at the very first opportunity (Kamara v
Canada (Citizenship and Immigration), 2007 FC 448, at para 26; Ambat v
Canada (Citizenship and Immigration), 2011 FC 292, at para 24, 386 FTR
35). Here, there is no evidence that this was done.
[28]
As a matter of fact, the record shows that the
Applicant holds a Master’s degree from the University of British Columbia. It
is therefore fair to assume that at the time of the hearing, she possessed a
level of language skills in English allowing her to understand the questions
put to her by the Citizenship Judge, provide meaningful and intelligible
answers and make her point as to why she should be found to meet the residency
requirement.
[29]
The judicial review application is dismissed.
Neither party has requested the certification of a question for the Federal
Court of Appeal. None will be certified.
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