Docket: T-68-16
Citation:
2016 FC 919
Ottawa, Ontario, August 11, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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MOHANMMAD
CHARBAND
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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]
Mohanmmad Charband appeals a decision of a
citizenship judge dated December 21, 2015. The citizenship judge refused his
application for citizenship because he found that Mr. Charband could not
demonstrate that he was resident in Canada for three of the four years
immediately preceding his application, as required by s 5(1)(c) of the Citizenship
Act, RSC 1985, c 29 [Act].
[2]
For the following reasons, I have concluded that
a citizenship judge has a discretion to apply the strict quantitative test for
residence, provided that the citizenship judge’s choice of test is evident from
the facts of the case. A citizenship judge is not obliged to provide an
explicit rationale for applying the strict quantitative test, nor to give
notice of the test for residence that will be applied. The appeal is therefore
dismissed.
II.
Background
[3]
Mr. Charband is a citizen of the Islamic
Republic of Iran. He came to Canada in 2002 and was found to be a Convention
refugee in 2003. He obtained permanent resident status on November 23, 2006.
[4]
The four year period immediately preceding Mr.
Charband’s application for Canadian citizenship began on June 16, 2007 and
ended on June 16, 2011 [the relevant period]. In his application, he declared
830 days of absence, not all of which fell within the relevant period.
[5]
Mr. Charband attended a hearing before the
citizenship judge on December 21, 2015, accompanied by his brother. The
citizenship judge refused his application the same day, applying the quantitative
test endorsed by Mr. Justice Muldoon in Re Pourghasemi, [1993] FCJ No
232, 62 FTR 122 [Pourghasemi].
III.
Decision under Review
[6]
According to the citizenship judge, during the
hearing Mr. Charband apologized for making a mistake because he thought he had “enough days” to be eligible for Canadian citizenship.
The citizenship judge acknowledged that other family members were Canadian
citizens, that he was in the process of sponsoring his immediate family from
Iran, and that his son was already in Canada. The citizenship judge accepted
Mr. Charband’s submissions that he had been a taxpayer since his arrival in
Canada, that he works full-time, and that he is a small business owner.
[7]
The citizenship judge held that under the
analytical approach found in Pourghasemi, it is necessary for a
prospective citizen to be physically present in Canada for 1,095 days during
the relevant four-year period. Mr. Charband acknowledged a shortfall of 188
days, and the citizenship judge therefore rejected his application without
further analysis.
IV.
Issues
[8]
This application for judicial review raises the
following issues:
A.
Is Pourghasemi still good law?
B.
Was the citizenship judge obliged to provide a
rationale for applying the strict quantitative test for residence found in Pourghasemi,
rather than the more flexible qualitative test found in other jurisprudence?
C.
Was the citizenship judge obliged to give notice
of which test for residence would be applied?
D.
Should a question be certified for appeal?
V.
Analysis
A.
Is Pourghasemi still good law?
[9]
Mr. Charband says that the test for residence to
be applied by a citizenship judge is a fraught area of the law. He notes that Pourghasemi
was decided 23 years ago, and argues that the decision has been superseded
by a wealth of contrary jurisprudence.
[10]
Mr. Charband relies on Canada (Minister of
Citizenship and Immigration) v Takla, 2009 FC 1120 [Takla], and says
that the strict quantitative test found in Pourghasemi has been replaced
by the more flexible qualitative test found in Re Koo, [1993] 1 FC 286 [Koo].
The qualitative test requires a citizenship judge to consider six questions (Koo at pages 293 and 294):
(1) was the individual physically present in Canada for
a long period prior to recent absences which occurred immediately before the
application for citizenship;
(2) where are the applicant’s immediate family and dependents
(and extended family) resident;
(3) does the pattern of physical presence in Canada indicate a
returning home or merely visiting the country;
(4) what is the extent of the physical absences - if an
applicant is only a few days short of the 1,095 day total it is easier to find
deemed residence than if those absences are extensive;
(5) is the physical absence caused by a clearly temporary
situation such as employment as a missionary abroad, following a course of
study abroad as a student, accepting temporary employment abroad, accompanying
a spouse who has accepted temporary employment abroad ;(6) what is the
quality of the connection with Canada: is it more substantial than that which
exists with any other country.
[11]
In Lam v Canada (Minister of Citizenship and
Immigration), 164 FTR 177, [1999] FCJ No 410 (QL) [Lam],
Justice Lutfy established the principle that “it is open to the citizenship judge to adopt either one of the
conflicting schools in this Court and, 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.” However,
in Takla, Justice Mainville observed that Lam was rendered in a
situation that was perceived to be temporary, given the statutory amendments
that were under consideration at the time. Because the situation subsequently
became permanent, he considered it appropriate to settle on one interpretation
of s 5(1)(c) of the Act (Takla at para 46):
[46] …Considering the clear majority of this
Court’s jurisprudence, the centralized mode of living in Canada test
established in Koo, above, and the six questions set out therein for
analytical purposes should become the only test and the only analysis.
[12]
Four years later, in Huang v Canada (Minister
of Citizenship and Immigration), 2013 FC 576 [Huang], Chief Justice
Crampton remarked that Justice Mainville’s “laudable
attempt to standardize the applicable law” had not been successful:
[21] In short, while his view that the Koo
test should be the sole standard has been endorsed in several subsequent
decisions of this Court (see for example, the cases listed in Hao,
above, at para 42, and in El Khader v Canada (Minister of Citizenship and
Immigration), 2011 FC 328, at para 17 [El Khader]; see also Imran,
above, at para 32), a citizenship judge’s discretion to apply one of the other
recognized tests has been upheld in several other decisions (see, for example Dachan
v Canada (Minister of Citizenship and Immigration), 2010 FC 538, at para 19;
Sarvarian v Canada (Minister of Citizenship and Immigration), 2010 FC
1117, at paras 8-9; Shubeilat v Canada (Minister of Citizenship and
Immigration), 2010 FC 1260, at paras 30-37 [Shubeilat]; Cardin v
Canada (Minister of Citizenship and Immigration), 2011 FC 29, at para 18; Hao,
above, at paras 48-50; El Khader, above, at para 23; Canada (Minister
of Citizenship and Immigration) v Saad, 2011 FC 1508, at para 14 [Saad];
Murphy v Canada (Minister of Citizenship and Immigration), 2011 FC 482,
at paras 6-8; Alinaghizadeh v Canada (Minister of Citizenship and
Immigration), 2011 FC 332, at para 28; Canada (Minister of Citizenship
and Immigration) v Abdallah, 2012 FC 985, at para 14 [Abdallah]; Zhou
v Canada (Minister of Citizenship and Immigration), 2013 FC 19, at para 30
[Zhou]).
[22] Indeed, this Court has held in a number
of other decisions that the “physical presence” test, discussed below, is the
correct test to apply (Martinez, above, at para 52; Al Khoury c
Canada (Ministre de la Citoyenneté) 2012 CF 536, at para 27; Canada
(Minister of Citizenship and Immigration) v Dabbous, 2012 FC 1359, at para
12; Ghosh v Canada (Minister of Citizenship and Immigration), 2013 FC
282, at para 25).
[23] In other decisions, the Court appears
to have adopted a hybrid approach, which would require a citizenship judge to
proceed to conduct a qualitative assessment, as contemplated by the Koo test,
even if the “physical presence” test has been selected by the citizenship judge
and failed by the applicant (Canada (Minister of Citizenship and
Immigration) v Elzubair, 2010 FC 298, at para 14 [Elzubair]; Salim
v Canada (Minister of Citizenship and Immigration), 2010 FC 975, at para
10; Canada (Minister of Citizenship and Immigration) v Nandre, 2003 FCT
650, at para 21).
[24] What is clear from the foregoing is
that the jurisprudence pertaining to the test(s) for citizenship remains divided
and somewhat unsettled.
[25] In this context, it is particularly
appropriate that deference be accorded to a citizenship judge’s decision to apply
any of the three tests that have a long and rich heritage in this Court’s
jurisprudence.
[13]
The Court’s most recent pronouncements regarding
the test for residence to be applied by a citizenship judge are Justice
Mactavish’s decision in Elderaidy v Canada (Minister of Citizenship and
Immigration), 2016 FC 560 [Elderaidy], and Justice Kane’s decision
in Fazail v Canada (Minister of Citizenship and Immigration), 2016 FC
111 [Fazail]. Both of these decisions confirm that citizenship judges
have discretion to apply the strict quantitative test for residence found in Pourghasemi,
or the more flexible qualitative test found in Koo.
[14]
Mr. Charband says that the doctrine of comity
does not compel this Court to follow either Elderaidy or Fazail
because, in both of those cases, the applicants conceded that a citizenship
judge has discretion to apply any of the tests for residence recognized in the
jurisprudence. Those cases ultimately turned on other questions, such as the
need for a citizenship judge to provide reasons for selecting one test rather
than another, or the need to provide notice of which test would be applied. I
am nevertheless satisfied that the dominant view of this Court continues to be
the one expressed by the Chief Justice in Huang: the jurisprudence governing
the test for residence remains divided and somewhat unsettled and, in this
context, it is important that deference be accorded to a citizenship judge’s
decision to apply any of the tests that have been recognized in the Court’s
jurisprudence. It follows that Pourghasemi remains good law.
B.
Was the citizenship judge obliged to provide a
rationale for applying the strict quantitative test for residence found in Pourghasemi,
rather than the more flexible qualitative test found in other jurisprudence?
[15]
In Elderaidy, the citizenship judge chose
to apply the strict quantitative test for residence. Mr. Elderaidy admitted
that he was more than 250 days short of the requisite 1,095 days of physical
presence in Canada during the four years immediately preceding his citizenship
application. He nevertheless argued that the citizenship judge should have
provided reasons for her decision to apply the physical presence test. Elderaidy
therefore bears some resemblance to the present case.
[16]
Mr. Elderaidy cited Justice Mactavish’s earlier
decision in Cardin v Canada (Minister of Citizenship and Immigration),
2011 FC 29 [Cardin] for the proposition that citizenship judges must
have regard to an applicant’s personal circumstances when selecting the test for
residence. According to Cardin, 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. However, Justice Mactavish cautioned in Elderaidy
that Cardin was a unique case, in that Mr. Cardin had come to Canada as
a child, and had been raised and educated in this country before going to work
in Canada for a Canadian company. In this context, Justice Mactavish concluded
that it was unreasonable for the citizenship judge to find that Mr. Cardin had
not become sufficiently “Canadianized” as a
result of his business trips outside Canada.
[17]
Justice Mactavish observed that Mr. Elderaidy’s
argument that citizenship judges must provide reasons for their choice of test
was not supported by jurisprudence (see Elderaidy at para 15 and the
cases cited therein). Mr. Elderaidy nevertheless submitted that reasons would
promote transparency and consistency in the decision-making process. Justice
Mactavish disagreed (at para 17):
[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 agree with Mr. Charband that Cardin
and, to a lesser extent, Elderaidy, support the proposition that a
rationale for the citizenship judge’s choice of the test for residence must be
evident from the facts of the case. However, it is only in extreme cases that a
citizenship judge’s choice of test will be found by this Court to be
unreasonable. In most cases, the rationale for the choice of test will be
implicit in a citizenship judge’s decision. The law is clear that there is no
requirement for a citizenship judge to provide explicit reasons for the choice
of test.
[19]
In this case, Mr. Charband arrived in Canada as
a refugee. He remained in Canada only until he obtained permanent resident
status, and then returned to Iran for extended periods of time. In these
circumstances, it cannot be said that the rationale for the citizenship judge’s
choice of the strict quantitative test for residence was not evident from the
facts of the case, or that it was unreasonable.
C.
Was the citizenship judge obliged to give notice
of which test for residence would be applied?
[20]
In Fazail, the applicant acknowledged
that the citizenship judge had discretion to apply one of the recognized tests
for residence, and was obliged to apply the chosen test correctly and
consistently. However, the applicant argued that the citizenship judge was also
required to provide notice of the test that would be applied, to enable the
applicant to know the case to be met. Mr. Charband makes a similar argument in
this case.
[21]
Like Mr. Charband, Mr. Fazail relied on Justice
Hughes’ decision in Dina v Canada (Minister of Citizenship and Immigration),
2013 FC 712 [Dina] and Justice Locke’s decision in Miji v Canada
(Minister of Citizenship and Immigration), 2015 FC 142 [Miji].
However, Justice Kane noted that Dina had been cited in other cases for
the proposition that it is an error for a citizenship judge to “fail to articulate which residency test was applied in a
given case” (see Fazail at para 34 and the cases cited therein).
She observed that Justice Hughes did not elaborate upon the scope of the duty
of procedural fairness, nor why the applicant in that case did not know the
case he had to meet. She distinguished Miji on the ground that the
applicant in that case was not aware of the test that would be applied, and may
have been led to believe that it would be the qualitative test (Fazail
at paras 37-38).
[22]
I agree with Justice Kane that the key issue is
whether there was in fact a breach of procedural fairness. 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 (Fazail at paras 39, 46).
[23]
In this case, Mr. Charband does not suggest that
he was unaware of the test he had to meet. On the contrary, the hearing notes
confirm that he acknowledged he did not meet the physical presence test, and he
apologized for his mistake.
[24]
Mr. Charband complains that the uncertainty
surrounding the different tests for residence that may be applied by a
citizenship judge results in unfairness. However, as Justice Kane found in Fazail
at paragraph 55, while the uncertainty in the law is unfortunate and may lead
to different outcomes, this is not a breach of procedural fairness.
[25]
Mr. Charband also says that he had a legitimate
expectation that the citizenship judge would apply the Koo test, based
on Citizenship and Immigration Canada’s “Manual” (Citizenship Policy (CP-5):
Residence, June 11, 2010) [Manual], specifically s 5.9 B “Exceptional circumstances – Residence”, which states
that the Koo factors may be considered when the physical presence test
is not strictly met. The Minister objects that the Manual, which is frequently
updated, is not properly in evidence before this Court. Regardless, the version
of the Manual relied upon by Mr. Charband indicates that the Koo factors
will be considered only in “exceptional circumstances”.
Mr. Charband has not identified any exceptional circumstance that may apply in
his case.
[26]
I am satisfied that Mr. Charband understood his
application for Canadian citizenship could be determined in accordance with the
strict quantitative test. He acknowledged that he had a shortfall of 188 days,
and apologized for his mistake. He also understood that the Koo factors
would be applied, if at all, only in exceptional circumstances, but he did not
identify any exceptional circumstances for consideration by the citizenship
judge. Nor do there appear to have been any. I am unable to conclude that there
was a breach of procedural fairness in this case.
D.
Should a question be certified for appeal?
[27]
Chief Justice Crampton began his judgment in Huang
with the following remarks:
[1] This case is yet another example of why
something needs to be done to address the unacceptable state of affairs
concerning the test for citizenship in this country.
[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. […] 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.
[28]
Justice Mactavish observed in Elderaidy at
paragraph 7 that there was still (at that time) no appeal from Federal Court
decisions in citizenship matters and, for this reason, there had never been an
appellate determination of which of the recognized tests for residence is
correct.
[29]
In Boland v Canada (Minister of Citizenship
and Immigration), 2015 FC 376, Justice de Montigny said the following at
paragraph 19:
[19] Like the Chief Justice in Huang,
I am of the view that Lam is still good law and that a citizenship judge
is free to assess an application for citizenship according to any one of these
three tests, provided of course that the test selected is then applied
correctly to the facts of the case. That may not be the most satisfying outcome
for litigants, but until the matter is resolved legislatively or judicially,
this is the inevitable result of the absence of a definition for the concept of
“residence” in the Act. Fortunately, the introduction of sections 22.1
and 22.2 in the Act will allow for this matter to be definitively
resolved by the Federal Court of Appeal, on a certified question from this
Court.
[30]
Section 5 of the Act has been amended by
the Strengthening Canadian Citizenship Act, SC 2014, c 22, s 3 [Strengthening
Canadian Citizenship Act], and the strict quantitative test is now
enshrined in statute. In addition, s 22.2(d) of the Act now provides
that “an appeal to the Federal Court of Appeal may be
made only if, in rendering judgment, the judge certifies that a serious
question of general importance is involved and states the question.”
[31]
Mr. Charband has proposed numerous certified
questions for appeal. The Minister says that the divergent tests for residence
have been resolved by statutory amendment, and no longer give rise to a serious
question of general importance. The Minister takes the position that the
remaining “backlog” of cases decided under the
previous statutory regime may be satisfactorily dealt with in accordance with
the existing jurisprudence of this Court.
[32]
In Zhang v Canada (Minister of Citizenship
and Immigration), 2013 FCA 168 at paragraph 9, the Federal Court of Appeal
held that a question may be certified for appeal only if it (i) is dispositive
of an appeal, and (ii) transcends the interests of the immediate parties to the
litigation, and contemplates issues of broad significance or general
importance. The question must have been raised and dealt with by the Court, and
it must arise from the case, not from the judge’s reasons. A question is one of
general importance where its resolution will be applicable to numerous future
cases (Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998]
1 SCR 982 at para 43).
[33]
In Mudrak v Canada (Minister of Citizenship
and Immigration), 2016 FCA 178 at paragraph 35, the Federal Court of
Appeal held that a question had been improperly certified because it pertained
to the reconciliation of divergent case law, and was “theoretical”
and made “in the nature of a reference”.
[34]
The “optimal resolution”
advocated by the Chief Justice in Huang has been achieved by the
enactment of the Strengthening Canadian Citizenship Act. Parliament has
legislated a clearer test for citizenship, and the strict quantitative test now
governs all citizenship applications. Mr. Charband points to the backlog
of cases decided under the previous regime, but I have been given no
information about the nature or extent of this backlog. I agree with the Minister
that existing jurisprudence, while in many respects unsatisfactory, provides a
means of addressing any remaining backlog that may still come before the
courts.
[35]
The reconciliation of divergent case law in the
present context may be regarded as largely theoretical. Given recent
legislative amendments, the questions proposed for certification by Mr. Charband
are no longer of general importance, and their resolution will not be
applicable to numerous future cases. It would be inappropriate to certify questions
for appeal in these circumstances.
VI.
Conclusion
[36]
The appeal of the citizenship judge’s decision
is dismissed. No questions are certified for appeal.
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