Docket: T-969-15
Citation:
2016 FC 111
Ottawa, Ontario, February 1, 2016
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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MOVEED ARSHAD
FAZAIL
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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]
The applicant appeals the decision of a
Citizenship Judge dated May 19, 2015 which found that, on a balance of
probabilities, he did not meet the residence requirement under paragraph
5(1)(c) of the Citizenship Act, RSC, 1985, c C-29, as amended [the Act]
which governed his application at the relevant time.
[2]
The applicant argues that the Citizenship Judge
breached the duty of procedural fairness by not advising him that the
quantitative or “analytical” test set out in Pourghasemi (Re), [1993]
FCJ No 232 (QL), 62 FTR 122 (FCTD) [Pourghasemi] would be applied to
determine if he met the residence requirement. The applicant acknowledges that
the Citizenship Judge has the discretion to apply one of the three tests
recognised in the jurisprudence, but argues that the Citizenship Judge should
have advised him of the test that would be applied and he should have had an
opportunity to make submissions with respect to the choice of test or to
dissuade the Citizenship Judge from applying the test the Judge was inclined to
apply.
[3]
The applicant relies on the decision of Justice
Hughes in Dina v Canada (Minister of Citizenship and Immigration), 2013
FC 712, [2013] FCJ No 758 (QL) [Dina] and notes that, in accordance with
the principle of judicial comity, Dina should be applied, as there is no
compelling reason not to do so.
[4]
For the reasons that follow, I find that, on the
facts of this case, there was no breach of procedural fairness and that the
principles of judicial comity are not at play because both the key issue and the
facts are different from Dina. As a result, the application for judicial
review is dismissed.
I.
Background
[5]
The applicant is a citizen of Pakistan who first
entered Canada on August 28, 1993 to attend university. He became a permanent
resident on February 26, 2006.
[6]
The applicant recounted his education in Canada
and abroad, his business ventures in Canada and his employment.
[7]
The applicant had lengthy absences from Canada
in 2008, totalling 340 days, because he was pursuing his Master’s degree in
France. Although he had less than the required 1,095 days of physical presence,
on the advice of his lawyer that he could succeed in his application for
citizenship because he met the other basic requirements, he submitted his
application for Canadian citizenship on May 31, 2010 prior to returning to Pakistan
for a family emergency.
[8]
The relevant period for determining whether the
applicant meets the residence requirement in the Act is, therefore, May 31,
2006 to May 31, 2010.
[9]
The applicant acknowledges that he fell short of
the required days of physical presence. His application and Residence
Questionnaire indicated that he did not meet the strict physical presence
requirement. At his hearing, his counsel requested that the Citizenship Judge
apply the test from Koo (Re), [1993] 1 FC 286, 59 FTR 27 (FCTD) [Koo].
[10]
In his affidavit, he states that the Citizenship
Judge did not advise him of the test he intended to apply. The Judge did not
question him about why he applied in May 2010 while short of the required
number of days, why he studied in France, or why he spent time in the USA where
his wife was studying.
II.
The Decision
[11]
The Citizenship Judge’s brief decision notes
that an applicant bears the burden of proving that they meet the residence
requirement. The Judge clearly states that he adopts the “analytical” approach
to the residence requirement from Pourghasemi, which requires that the
applicant be physically present in Canada for 1,095 days in the relevant four
year period.
[12]
The Judge notes that the applicant reported 511
days absent and 949 days present in Canada. Given that the Act requires 1,095
days, the Citizenship Judge notes that the applicant is short by 146 days.
[13]
The Judge concludes that, on a balance of
probabilities, the applicant does not meet the residence requirement under
paragraph 5(1)(c) of the Act.
III.
The Issues
[14]
The applicant argues that in accordance with the
principle of judicial comity, the Court should find that there was a breach of
procedural fairness. However, there are two issues:
1.
Did the Citizenship Judge breach the duty of
procedural fairness owed?
2.
Does the principle of judicial comity require
the Court to find that there was a breach of procedural fairness?
IV.
The Standard of Review
[15]
Although this is an appeal from a decision of a
Citizenship Judge and not a judicial review, the jurisprudence has established
that the administrative law principles governing the standard of review apply: Canada
(Minister of Citizenship and Immigration) v Rahman, 2013 FC 1274, [2013]
FCJ No 1394 (QL); Canada (Minister of Citizenship and Immigration) v Lee,
2013 FC 270, [2013] FCJ No 311 (QL).
[16]
A Citizenship Judge’s application of a
particular test for residency is a question of mixed fact and law that is
reviewable on the reasonableness standard.
[17]
Questions of procedural fairness are reviewable
on the correctness standard of review: Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 S.C.R. 339; Zhou v
Canada (Minister of Citizenship and Immigration), 2013 FC 313 at para 12,
[2013] FCJ No 350 (QL).
V.
The Applicant’s Position
[18]
The applicant acknowledges that the Citizenship
Judge had the discretion to apply one of the three tests and must apply the
test chosen correctly and consistently. The applicant argues that the
Citizenship Judge must also advise an applicant of the test that will be
applied, so that the applicant will know the case that they have to meet.
[19]
The applicant argues that the Citizenship Judge
breached the duty of procedural fairness by not advising the applicant at the
outset of the hearing that he would apply the test from Pourghasemi and
by not giving the applicant an opportunity to make submissions regarding the
choice of test before exercising his discretion to determine the test that
would be applied.
[20]
The applicant points to Dina and Miji
v Canada (Minister of Citizenship and Immigration), 2015 FC 142 at para 21,
[2015] FCJ No 131 (QL) [Miji] in support of the proposition that there
should be no doubt as to which test will be applied, noting that Dina
has been cited in other decisions and that there is no contradictory jurisprudence
on this specific point.
[21]
The applicant submits that based on the
principle of judicial comity, Dina should be followed as the
circumstances do not point to any exception from the principle.
VI.
The Respondent’s Position
[22]
The respondent notes that the jurisprudence is
clear that a Citizenship Judge has no obligation to apply a particular test and
is entitled to apply any of the three tests, as long as the choice of test is
clearly articulated. The Citizenship Judge is not required to also consider the
other tests: see Shubeilat v Canada (Minister of Citizenship and
Immigration), 2010 FC 1260 at para 34, [2010] FCJ No 1546 (QL) [Shubeilat]).
[23]
The respondent argues that the proposition
relied on by the applicant in Dina, that the Citizenship Judge must give
prior notice of the test to be applied, is not reflected in the broader
jurisprudence of this Court. Dina has been cited in other cases, but for
the proposition that it is an error for a Citizenship Judge to fail to
articulate which test has been applied, not for the proposition that they must
notify applicants in advance of the choice of test. In this case, the Judge
clearly articulated in the decision that Pourghasemi had been applied.
[24]
There was no breach of procedural fairness. The
applicant is presumed to know the law, including that the Citizenship Judge may
apply one of three tests. The applicant acknowledged that he did not meet the
physical presence test. He knew that either the test in Koo or Pourghasemi
could be applied. The applicant clearly indicated that he requested that the
Judge apply the Koo test; he was, therefore, not deprived of the
opportunity to make such submissions.
[25]
Moreover, even if the applicant had been advised
in advance of the test the Citizenship Judge would apply, he would not have
been able to show that he met the requirements because he had acknowledged that
he was short 146 days in the relevant period.
VII.
There Is No Breach of Procedural Fairness
[26]
In Canada (Minister of Citizenship and
Immigration) v Purvis, 2015 FC 368, [2015] FCJ No 360 (QL), Justice Mosley
provided an overview of the three tests which may be applied by a Citizenship
Judge, noting there are really two tests, a quantitative and qualitative test:
[26] It is settled law that a Citizenship
Judge may reasonably rely on one of three residence tests: (1) the quantitative
test set out in Pourghasemi (Re), [1993] FCJ No 232 (TD) [Pourghasemi];
(2) the qualitative test set out in Papadogiorgakis (Re), [1978] FCJ No
31 (TD) [Papadogiorgakis]; or (3) the modified qualitative test set out
in Koo (Re), [1992] FCJ No 1107 (TD) [Koo].
[27] As I explained in Hao v Canada
(Citizenship and Immigration), 2011 FC 46 at paras 14-19, these cases
really set out two tests because Koo is an elaboration on Papadogiorgakis.
These are the quantitative physical presence test from Pourghasemi and
the qualitative test from Koo and Papadogiorgakis.
[27]
There is no dispute that any of the three
approaches to the concept of residence can be applied by Citizenship Judges (Shubeilat
at paras 1-2) and that a Citizenship Judge does not “have
to consider the Papadogiorgakis and Koo tests” (Shubeilat
at para 34).
[28]
There has been a significant amount of
commentary in the jurisprudence regarding the confusion and lack of consistency
that results from the application of one of three different tests (including,
for example, Huang v Canada (Minister of Citizenship and Immigration),
2013 FC 576 at para 18-24, [2013] FCJ No 629 (QL)).
[29]
In Boland v Canada (Minister of Citizenship
and Immigration), 2015 FC 376, [2015] FCJ No 340 (QL), Justice de Montigny
noted:
[17] In Lam v Canada (Minister of
Citizenship and Immigration), [1999] FCJ No 410 [Lam], Justice
Lutfy, as he then was, came to the conclusion that until the Act is amended to
resolve this conflicting jurisprudence, it is open to a citizenship judge to
choose any one of the three tests to assess the residency requirement, provided
that he or she demonstrates an understanding of the case law and properly
decides that the facts meet the test that has been applied.
[30]
Noting the concerns expressed by the Court
regarding the various tests that could be applied and the resulting
uncertainty, Justice de Montigny added:
[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.
[31]
A Citizenship Judge that applies the Koo
test could find that an applicant meets the requirements of the Act while the
application of the Pourghasemi test could lead to the opposite result.
In the present case, it appears that if the Judge had chosen to apply Koo,
the result for this applicant may have been different.
[32]
With respect to whether the Citizenship Judge is
required to give notice of the test to be applied in advance of or at the
outset of the hearing, and whether failure to do so is a breach of procedural
fairness, in Dina Justice Hughes stated:
[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.
[Emphasis added.]
[33]
Dina was cited by
Justice Locke in Miji, who also found that it was a breach of procedural
fairness for an applicant to be “put in a position of
doubt as to what test a citizenship judge will be applying” (at para
21). Justice Locke added at para 22, that on the evidence, it was possible that
the Citizenship Judge would have reached a different conclusion if he had
applied a qualitative test.
[34]
As noted by both the applicant and respondent, Dina
has been cited in other cases by Justice LeBlanc, 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”: Canada
(Minister of Citizenship and Immigration) v Bayani, 2015 FC 670 at para 25,
[2015] FCJ No 693 (QL); Canada (Minister of Citizenship and Immigration) v
Bani-Ahmad, 2014 FC 898 at para 19, [2014] FCJ No 1095 (QL); Canada
(Minister of Citizenship and Immigration) v Pereira, 2014 FC 574 at para
16, [2014] FCJ No 604 (QL).
[35]
I note that in each of those cases, Justice
LeBlanc referred to the need for the Citizenship Judge to indicate the test
that was applied; he did not refer to Dina for the proposition that the
Judge should advise the applicant in advance of the test that would be applied.
Moreover, in each of those cases, Justice LeBlanc did not find any breach of
procedural fairness; rather, he found that the decisions were not reasonable.
[36]
The principle that the Judge must clearly
indicate in the decision the test that was applied is not in dispute and in the
present case, the Judge clearly did so.
[37]
In Dina, Justice Hughes noted the need
for the applicant to know the case he has to meet and clearly found, on those
facts, that there was a breach of procedural fairness. His finding that the
Citizenship Judge should advise the applicant of the test that will be applied
was for the purpose of permitting the applicant to know the case he has to
meet. Justice Hughes did not elaborate upon the scope of the duty of procedural
fairness or why, on the facts in Dina, the applicant did not know the
case he had to meet.
[38]
In Miji, Justice Locke found that the
applicant was not aware of the test that would be applied because the request
to bring specific documents to the hearing could have implied that the
qualitative test could be applied. Justice Locke relied on Dina and did
not elaborate on the scope of the duty of procedural fairness owed in such
cases.
[39]
I regard the key issue in this case as whether
there was in fact a breach of procedural fairness. This requires consideration
of the scope of the duty of procedural fairness owed to applicants by
Citizenship Judges.
[40]
In Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817 at paras 23-28, 174 DLR (4th) 193 [Baker],
Justice L’Heureux-Dubé emphasized that the content of the duty must be
determined in the specific context of each case; the duty of fairness is
flexible and variable, and depends on the context of the particular statute and
the rights affected. Justice L’Heureux-Dubé identified five non-exhaustive
factors that should be considered: 1) the nature of the decision; 2) the
statutory scheme; 3) the importance of the decision to the individual affected;
4) the legitimate expectations of the person challenging the decision; and 5)
the choice of procedure by the decision-making agency. She reiterated that
procedural fairness is based on the principle that individuals affected by
decisions should have the opportunity to present their case and to have
decisions affecting their rights and interests made in a fair, impartial and
open process “appropriate to the statutory, institutional,
and social context of the decision” (Baker at para 28).
[41]
The level of procedural fairness owed by a
decision-maker may be affected by the nature of the decision being made and the
process followed in making it. The more the process resembles judicial
decision-making, the more likely it is that procedural protections closer to
the trial model will be required by the duty of fairness (Baker at para
23). In the present case, the Citizenship Judge’s process differs somewhat from
judicial decision-making as the hearing is not adversarial and the Minister is
not usually represented, although the report from a Citizenship and Immigration
Officer outlining any concerns, based on an assessment of the application, is
before the Citizenship Judge.
[42]
Greater procedural protections are required when
no appeal procedure is provided within the statute, or when the decision is
determinative of the issue and further requests cannot be submitted (Baker
at para 24). Citizenship decisions have a right of appeal to this Court with
leave, pursuant to subsection 22.1(1) of the Act. In addition, an applicant may
bring subsequent applications for citizenship following a refusal.
[43]
The importance of a decision to the individual
affected is a significant factor affecting the content of the duty of
procedural fairness (Baker at para 25). Clearly, the applicant’s
citizenship is of high importance to him.
[44]
The legitimate expectations of the individual is
also a factor; if the individual has a legitimate expectation that a certain
procedure will be followed, this procedure will be required by the duty of
fairness (Baker at para 26). In the present case, the applicant did not
have a legitimate expectation that a particular test would be applied, despite
the earlier advice of his counsel. He acknowledged that he did not meet the
required number of days for the physical presence test. He was represented by
counsel and was aware that there were three tests the Judge could apply. His
counsel made submissions that the Koo test should apply. This
demonstrates that he did not have a legitimate expectation that Koo
would be applied; only that he preferred that Koo be applied.
[45]
The choice of procedure by the decision-maker is
also a relevant consideration; when the statute leaves the decision-maker the
ability to choose its own procedures, this should be respected (Baker at
para 27). In the present circumstances, the Citizenship Judge has the
discretion to apply one of three tests. This arises from the jurisprudence and,
as noted above, has created inconsistency, however, the choice is that of the
Citizenship Judge.
[46]
Consideration of the Baker factors,
therefore, suggests that 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.
[47]
In my view, this duty of procedural fairness was
met in the present case.
[48]
The applicant made submissions at the outset of
his hearing asking that the Koo test be applied. Therefore, he was not
under the impression that the Citizenship Judge had already decided the test
that he would apply. The decisions in Dina and Miji do not reveal
whether those applicants made submissions regarding which test should be
applied. It appears that in Dina the concern was that the applicant was
deprived of such an opportunity and that they did not know the case they had to
meet. In Miji, the concern was that the application of the qualitative
test would have led to a positive result, that the strict quantitative approach
was unfair in the overall circumstances and that the request for documents
could have implied that the qualitative test would be applied. In the present
case, the applicant knew he had to meet either the quantitative test (Pourghasemi)
or the qualitative test (Koo). He knew and had acknowledged that he
could not meet the quantitative test because he was short 146 days in the
relevant period.
[49]
The applicant now argues that there is a
distinction between submissions on how he meets the Koo test and
submissions on why the Citizenship Judge ought to apply the Koo test.
The latter submissions could raise issues relating to the broader context,
including, in this case, that the applicant had applied in 2010 at a time where
qualitative factors were more readily considered, that the applicant was
truthful in noting his absences and that the applicant had waited five years
for his hearing to be convened. The applicant notes that his submissions were
focussed only on how he would meet the Koo test.
[50]
Although there is no transcript of the hearing,
the applicant states that his counsel made submissions to the Citizenship Judge
asking that Koo should apply. Presumably those submissions also
addressed, or could have addressed, why Koo should apply, given the
applicant’s reference in his affidavit to the documents he provided. The
applicant states in his affidavit that the Judge did not question him about his
absences or his travels, including his education abroad and his wife’s
education in the USA, which suggests that this information had been put before
the Judge. However, the procedural fairness issue focuses on whether he knew
the case he had to meet and had an opportunity to make submissions. He clearly
knew the case he had to meet and did make submissions to the Judge at the
outset of the hearing, asking the Judge to apply the Koo test.
[51]
He was not prevented from addressing why the
Judge should consider the Koo test. It would be difficult to draw a fine
line between submissions on why the Judge should consider the Koo test
and how the applicant met the Koo test. In other words, the applicant’s
submissions on how he met the Koo test would alert the Citizenship Judge
whether that test should be applied and nothing prevented the applicant from
noting the broader issues, including, for example, the delay in the processing
of his application.
[52]
The applicant emphasizes that in Dina,
the Court found that there is a duty to advise the applicant in advance of the
test the Judge will apply and argues that if this is done, an applicant will
have an opportunity to dissuade the Judge from applying that test. However, the
issue is not whether a particular form of words was used signaling the test
that the Judge is contemplating applying, but whether there was a breach of
procedural fairness.
[53]
In the present case, the applicant knew he did
not meet the quantitative test. As noted, he asked the Judge to apply the Koo
test, and in so asking, he had an opportunity to make submissions about why he
was making the request that the Judge exercise his discretion to apply that
test. In my view, there was no enhanced duty of procedural fairness to require
the Citizenship Judge to advise the applicant that his inclination was to apply
a particular test and to invite a rebuttal.
[54]
In Dina, Justice Hughes implicitly found,
on the facts of that case, that the applicant did not know the case he had to
meet. However, I do not agree that there would be a breach of procedural
fairness where an applicant clearly knows the case he or she has to meet and
has had an opportunity to be heard. A breach of procedural fairness does not
arise simply because an applicant is not alerted to something the applicant is
clearly aware of, including the state of the law.
[55]
I acknowledge, as did Justice Locke 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 noted
above, the jurisprudence has recognised that reality, but this is not a breach
of procedural fairness.
[56]
In my view, the Court would be adding to
uncertainty in the law regarding the duty of procedural fairness to find a
breach where none exists by focussing on form rather than substance.
VIII.
Judicial Comity Does Not Apply
[57]
In Alyafi v Canada (Minister of Citizenship
and Immigration), 2014 FC 952, [2014] FCJ No 989 (QL), in the context of
the different approaches in the jurisprudence regarding the standard of review
to be applied by the Refugee Appeal Division to decisions of the Refugee
Protection Division, pending resolution by the Federal Court of Appeal, Justice
Martineau highlighted the rationale for the principle of judicial comity. His
eloquent words provide guidance in other contexts, including the uncertainty
that has prevailed in the determination of the citizenship residency
requirements:
[42] As we said above, standards of
review are judicial creations. Nonetheless, once established, they must be
respected by the courts just as any other rule of law. And what gives the rule
of law its precedence is its universality: It applies equally to all; there is
no place for judicial or administrative discretion. Further, following the
principle of judicial comity and, unless certain exceptions apply, a judge of
this Court should not deviate from decisions made by his or her colleagues to
avoid creating a situation of uncertainty in the law. It would be expected that
the principle of judicial comity is particularly important in immigration
matters, since under the IRPA, decisions of this Court may uniquely be subject
to an appeal to the Federal Court of Appeal if a question of general importance
is certified. Therefore, it is desirable to have some consistency in the
Court’s decisions. Yes, the judge can make the law, but when each judge makes
his or her own law, the rule law that is no longer applied withers. To use
descriptive language, the law loses weight and this unbearable lightness of
being makes it irrelevant, leaving more room than is needed for administrative
or legal discretion.
[58]
Justice Martineau summarized the jurisprudence
regarding judicial comity at para 45:
[45] I repeat: the principle of
judicial comity aims therefore to prevent the creation of conflicting lines of
jurisprudence and to encourage certainty in the law. Generally, a judge should
follow a decision on the same question of one of his or her colleagues, unless
the previous decision differs in the facts, a different question is asked, the
decision is clearly wrong or the application of the decision would create an
injustice. Judicial comity requires much humility and mutual respect. If the
rule of law does not tolerate arbitrariness, judicial comity, its loyal
companion, relies on reason and the good judgment of each person. Failing a
final judgment from the highest court, respect for the other’s opinion can
speak volumes. In short, judicial comity is elegance incarnate in the person of
the magistrate who respects the value of precedents.
[59]
In the present case, judicial comity is not at
stake. The facts of the present case are similar to those in Dina only
insofar as the applicant had not been physically present for the requisite
number of days, as in many other citizenship applications. The key facts are
not the same. In Dina, Justice Hughes’ concern was that the applicant
should know the “case to be met” as this is a
minimal procedural fairness requirement. Justice Hughes found that the
applicant in Dina did not know the case to be met and that no
opportunity was provided to make submissions regarding the test that the
Citizenship Judge should apply. In the present case, based on the applicant’s
description of the hearing, noting that no transcript is available, the
applicant was clearly aware that the Judge had a choice of tests and did make
submissions that Koo should apply. The issue, if it is characterised as
whether there was a breach of procedural fairness by not providing an
opportunity for the applicant to make submissions, is not the same as in Dina.
Similarly, if the issue is characterised as whether the applicant should know
the case to be met, the issue is also not the same as Dina. As noted
above, a more extensive analysis of the scope of the duty of procedural
fairness leads me to conclude that there was no breach of procedural fairness
because, unlike Dina, on the facts of the present case, the applicant
was aware of the “case to be met”, had an opportunity
to make submissions and did so at the outset of the hearing.
[60]
With respect to the rationale for judicial
comity to avoid more uncertainty in the law, I acknowledge that the uncertainty
created by the jurisprudence regarding the application of the residency
requirements in the Act is troubling. The recent amendments to the Act, which
change the requirements and focus on physical presence, will hopefully rectify
this situation.
[61]
In my view, it would create greater uncertainty
in the law regarding procedural fairness to add requirements to that duty where
none are needed, including finding a breach of procedural fairness based on a
failure of the Citizenship Judge to invite submissions before he or she
exercises the discretion to choose the test to be applied, when such
submissions have been provided without a specific invitation.
[62]
As a result, the application for judicial review
is dismissed.
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