Docket: T-2186-16
Citation:
2017 FC 732
[ENGLISH TRANSLATION]
Ottawa, Ontario, July 27, 2017
PRESENT: The Honourable Mr. Justice Gascon
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BETWEEN:
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REDOUANE HABA
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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.
Overview
[1]
The applicant, Redouane Haba, has dual Algerian
and French citizenship and became a permanent resident of Canada in February
2009. He initially came to Canada to settle his children in preparation for
their university studies. On May 22, 2014, he applied for Canadian
citizenship.
[2]
After reviewing Mr. Haba’s application, his
residence questionnaire and other documentation, the citizenship officer
identified several issues with Mr. Haba’s file. The matter was subsequently
referred to a citizenship judge, who held a hearing with Mr. Haba during which
she questioned him and addressed the concerns regarding his absences and the
length of his residence in Canada. In a decision made on
November 21, 2016, the citizenship judge dismissed Mr. Haba’s
application on the basis that he had breached the minimum residency requirement
in Canada.
[3]
Mr. Haba is now before the Court for a
judicial review of that decision. Mr. Haba submits that the citizenship judge
made three errors in refusing to grant him citizenship: she failed to determine
first whether he had established a residence in Canada before analyzing the
qualitative test for residency, she erred in finding that he was not credible,
and she breached his right to procedural fairness. In response, the Minister of
Citizenship and Immigration argues that the judge’s decision is reasonable in
all respects and that there was no breach of the rules of procedural fairness.
[4]
The only issues to be decided are whether the citizenship
judge erred in failing to conduct a two-step analysis in determining Mr. Haba’s
eligibility and whether there was a breach of the rules of procedural fairness
in the handling of this matter. It is not necessary to address the third error
raised by Mr. Haba with respect to credibility during the hearing before this
Court, as counsel for Mr. Haba stated that he will not pursue his remedy in
this regard.
[5]
For the reasons that follow, Mr. Haba’s
application for judicial review is dismissed. I am not satisfied that the
decision made by the citizenship judge does not fall within a range of possible
acceptable outcomes in the circumstances or that there are reasons to warrant
intervention by the Court. Rather, I find that the citizenship judge complied
in all respects with the analysis that she was required to conduct to establish
whether Mr. Haba had complied with the residency requirements set out in
paragraph 5(1)(c) Citizenship Act, RSC 1985, c. C-29 [Act]. Furthermore,
I do not see any indication suggesting that Mr. Haba’s right to be heard and to
a have a fair and impartial hearing has been breached.
II.
Context
A.
The decision
[6]
At the time of Mr. Haba’s application, paragraph
5(1)(c) of the Act stipulated that Canadian citizenship could only be granted
if the applicant had lived in Canada for at least three years or 1,095 days in
the previous four years or 1,460 days preceding the application. Mr. Haba’s
qualifying period was therefore from May 22, 2010 to May 22, 2014.
[7]
The citizenship judge first indicated in her
decision that she was relying on the strict counting analytical approach
articulated in Pourghasemi (Re), [1993] FCJ No. 232 [Pourghasemi],
whereby a prospective citizen shall prove a physical presence in Canada of at
least 1,095 days during the qualifying period to meet the residency
requirement.
[8]
In his initial citizenship application, Mr. Haba
stated that he had been absent for 336 days, for a physical presence of 1,124
days in Canada during the qualifying period. Following a meeting with the
citizenship officer, Mr. Haba sent a residence questionnaire to correct several
miscalculations and subsequently reached a total of 347 days absent and a
physical presence of 1,113 days. Noting that Mr. Haba had made miscalculations
in his initial application, the citizenship judge began by recalculating the
days of absence and cross-checked the dates with the stamps in Mr. Haba’s
passports. Then, by adding the trips that had subsequently been included in the
residence questionnaire and verifying them with Mr. Haba’s passports, Mr.
Haba’s days in Canada dropped to 1,075 days, which is below the minimum
required for the quantitative residency test.
[9]
The citizenship judge also noted that several
entry stamps in various countries were not included in Mr. Haba’s passports,
which made it impossible to certify the length of certain trips. She also noted
that because Mr. Haba had a French passport and that France does not stamp its
citizens’ passports, it was impossible to verify the length of his trips in that
country. Furthermore, the citizenship judge decided not to give credibility to
Mr. Haba’s testimony, given his many contradictions and the fact that the
passports showed that some of his trips were longer than he had reported.
[10]
As a result, the citizenship judge found that,
on a balance of probabilities, Mr. Haba did not satisfy the quantitative
residency test and did not meet the residency requirement to become a Canadian
citizen.
B.
Standard of review
[11]
It is well-established that the standard of
review applicable to decisions made by a citizenship judge on non-compliance
with the residency test and on the test that applies to that test is the
reasonableness standard (Canada (Citizenship and Immigration) v Samaroo,
2016 FC 689 [Samaroo] at para 12; Lally v Canada (Citizenship
and Immigration), 2016 FC 688 at paras 3–4 [Lally]; Canada (Citizenship
and Immigration) v Baccouche, 2016 FC 97 [Lally] at para 9; and Huang v Canada
(Citizenship and Immigration), 2013 FC 576 [Huang] at para 26).
[12]
When reasonableness is the standard of review,
the Court must show deference and be careful not to substitute its own opinion
with that of the decision-maker, provided that the decision is justified,
transparent and intelligible and falls within “a range
of possible, acceptable outcomes which are defensible in respect of the facts
and the law.” (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
at para 47). The reasons of a decision are considered reasonable “if the reasons allow the reviewing court to understand why
the tribunal made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes” (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 16).
[13]
Issues of procedural fairness, however, must be
analyzed according to the correctness standard (Mission Institution v Khela,
2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43; Huang at para 11). When the correctness standard
is used, deference is not required, and the Court shall conduct its own
analysis and substitute its own view with the decision-maker’s in the face of
disagreement. (Dunsmuir at para 50). In fact, the question then is
whether the decision-maker’s process was fair (Majdalani v Canada (Citizenship
and Immigration), 2015 FC 294 at para 15).
III.
Analysis
A.
The citizenship judge did not err in applying
the residency test
[14]
Mr. Haba first argues that the citizenship judge
erred by failing to conduct a two-step analysis in determining whether he was
eligible for Canadian resident status. Relying in particular on Afkari v
Canada (Citizenship and Immigration), 2016 FC 421 [Afkari], Mr. Haba
submitted that the citizenship judge should have conducted a two-step process
and first determined whether he had established a residence in Canada before verifying
if his residency satisfied the number of days required.
[15]
I disagree with Mr. Haba. Rather, I am of the
opinion that in proceeding as she did, the citizenship judge did not commit an
error warranting the Court’s intervention.
[16]
Subsection 5(1) of the Act is the cornerstone of
the process for becoming a Canadian citizen. Before the most recent amendments
to the Act came into force (subsequent to Mr. Haba’s application), it was
sufficient to “reside” in Canada for at least
three out of four years, or 1,095 days, to be eligible for citizenship. Since
the Act does not define the term “residence,”
the Court has been debating for some time what this term and paragraph 5(1)(c)
of the Act really mean. Three schools of jurisprudence have emerged from this
debate, and, consequently, in any given case, citizenship judges can apply three
different tests to assess whether the residency requirements have been met (Lally
at para 17; Boland v Canada (Citizenship and Immigration), 2015 FC 376 [Boland]
at paras 13–16; Huang at para 41).The dominant view in this Court’s
jurisprudence is that citizenship judges are entitled to choose which test they
desire to use among these three tests and that they cannot be faulted for
choosing one over the other (Samaroo at para 21; Lally at para
19; Boland at para 17). Citizenship judges must however at least
indicate which residency test was used and why the test was met or not. (Samaroo
at para 21; Canada (Citizenship and Immigration) v Jeizan, 2010 FC 323 at
para 18).
[17]
Citizenship judges can therefore apply either
(i) the test developed in Pourghasemi, whereby residency is established
following a strict counting of the number of days in which the applicant was
actually in Canada (the total must be at least 1,095 days residing in the country
during the four years preceding the application); (ii) the test established by Papadogiorgakis
(Re), [1978] 2 FC 208, a more flexible criteria that recognizes that a
person may have resided in Canada even though that individual was temporarily
absent, provided that strong ties to Canada were maintained and that the
person’s lifestyle reflected the intention to establish a permanent residence
in the country; or (iii) the test arising from Koo (Re), [1993] 1 FC 286,
which defines residence as the place where one “regularly,
normally and customarily lives” or has “centralized
his or her mode of existence.” The first two tests are often described
as qualitative (Huang at para 17), in contrast to the quantitative test
in Pourghasemi.
[18]
At the risk of having her decision overturned,
the citizenship judge was therefore required to specifically identify which
test she chose and to review Mr. Haba’s applications based on this test. There
is no doubt in this case that the citizenship judge chose the physical presence
test from Pourghasemi and that she indeed applied this quantitative
test. In her decision, the citizenship judge clearly noted this and explicitly
indicated, with supporting calculations, how Mr. Haba failed to meet this test.
In this respect, she cannot be criticized.
[19]
That said, I do recognize, as Mr. Haba argues,
that it is well established that the analysis under paragraph 5(1)(c) requires
a two-step test: first, it must be determined whether the applicant has
established residency in Canada and, second, whether that residency has been
maintained for the required period, based on the residency test chosen (Samaroo
at para 23; Afkari at para 17; Al Tayeb v Canada (Citizenship
and Immigration), 2012 FC 333 [Al Tayeb] at para 14). I should
quickly point out that there is some discordance in the jurisprudence of this
Court as to whether the two-stage inquiry is required in cases where the
physical presence test for residency is being applied, and not one of the two
qualitative criteria (Elderaidy v Canada (Cti), 2016 FC 560 [Elderaidy]
at para 22). I do not need to resolve that issue in this case, however, and I
am prepared to accept, for the purposes of this case, that the two-step
approach may be used for the analysis that a citizenship judge must conduct even
when the quantitative test from Pourghasemi is being applied (Afkari at
para 17; Al Tayeb au para 14).
[20]
However, this does not mean that the two-stage
test boils down to a rigid framework that imposes a strict approach that must
be followed for analyzing citizenship applications. On the contrary, the
jurisprudence qualifies its applications in two ways, particularly when the
residency analysis is based on the quantitative test. First, it is now well-recognized
that the first step of the test (namely the threshold question of whether the
applicant has established residency in Canada) does not have to be addressed
explicitly and that it can be dealt with implicitly by citizenship judges (Samaroo
at para 25; Afkari at para 22; Canada (Citizenship and Immigration)
v Lee, 2016 FC 67 at paras 22–23; Boland at para 22; Canada (Citizenship
and Immigration) v Guettouche, 2011 FC 574 at para 14–16). However, it
seems clear to me from the reasons for decision that, in the case of Mr. Haba,
the citizenship judge implicitly recognized that Mr. Haba did in fact establish
residency in Canada. Implicit recognition means recognition that can be
inferred from the reasons for decision, and in my view, this is the case here.
[21]
These facts are reminiscent of Boland, in
which de Montigny J. found that if a citizenship judge proceeded to the
analysis of the number of days of residence, it was implicitly recognized that
the threshold question was answered in the affirmative: “it must be presumed that the Citizenship Judge was prepared
to accept that the Applicant had established residence on the day of landing,
otherwise there would have been no reason to determine whether the Applicant’s
residency satisfied the statutorily prescribed number of days” (Boland
at para 22). In the case at hand, even though no explicit indication
appears in the decision, it logically follows that the citizenship judge
implicitly decided that Mr. Haba had satisfied the first step.
[22]
This factor in particular makes it possible to distinguish
between Afkari and Al Tayed, decisions on which Mr. Haba based
his main argument on his first ground of judicial review.
[23]
The second nuance that emerges from the
jurisprudence is also closely related to the quantitative residency test. It
can be summarized as follows: the need for an in-depth and explicit analysis of
the first part of the two-stage test loses its importance when the physical
presence test is applied and where, as is the case here, the applicant has simply
failed to establish that he has the required number of days of residence. In
fact, once a strict counting of days is completed, and once it has been found
that an applicant has failed to meet the minimum residency requirements,
further analysis of preliminary establishment of residency becomes futile (Elderaidy
at para 22). It should be noted that the first step in the residency test
is the first threshold that must be met and, once satisfied, makes it possible
to reach the second stage, which involves deciding whether the applicant’s
residency satisfies the total number of days required by the Act. If applicants
fail the first step, they do not even proceed to the second. Conversely, if
applicants fail the second step, then the question of whether they meet the
first part becomes entirely moot.
[24]
Consequently, once the citizenship judge found
that Mr. Haba did not meet the requirements of the second step, whether or not
he had established a residence in Canada could not have any impact on the
outcome of his citizenship application, since Mr. Haba simply did not spend
enough time in Canada to meet the quantitative residency requirement. In these
circumstances, the fact that the citizenship judge did not make a clear and
explicit decision on the first part of the test cannot be sufficient to make
her decision unreasonable and warrant this Court’s intervention because it
would have in no way changed the outcome of the decision.
[25]
I acknowledge that the citizenship judge did not
specifically divide her analysis into steps, which might have made it easier to
follow the application of the test and the residency test that was chosen. From
Mr. Haba’s point of view, it would have been desirable for the citizenship
judge to explain her reasoning in more detail. However, I find that it is
possible and reasonable to infer on the face of the record, in conjunction with
the reasons for decision, that the judge implicitly found that Mr. Haba had
established his residence in Canada prior to the relevant qualifying period. In
the circumstances, I can easily understand the basis of the panel’s decision
and establish that the citizenship judge’s finding is unquestionable within the
range of possible acceptable outcomes which are defensible in respect of the
facts and law. The Court’s intervention is therefore not warranted.
B.
There is no breach of procedural fairness
[26]
Second, Mr. Haba submits that the citizenship
judge breached his right to procedural fairness and violated the principles of
fundamental justice. He argues that a high standard of procedural fairness
should be applied to the decision-making process, and that such a standard was
not met. More specifically, Mr. Haba argues that the citizenship judge did not
allow him to adequately respond to questions and that the judge failed to
consider his explanations, particularly with respect to the entry stamps from
several countries that made it impossible to verify various travel dates.
[27]
I do not share Mr. Haba’s opinion on the second
ground for judicial review.
[28]
The duty to act fairly does not relate to the
merits or the content of a decision but, rather, to the process followed. This
duty is two-fold: the right to a fair and impartial hearing before an independent
tribunal and the right to be heard (Re Therrien, 2001 SCC 35 at para
82). The nature and scope of the duty of procedural fairness may vary depending
on the attributes of the administrative tribunal and its enabling statute, but
its requirements refer to the process and not to the substantive rights
determined by the tribunal. The principle of procedural fairness protects
individuals and allows for the Court’s intervention when necessary, when a
decision does not respect a litigant’s right to a fair and equitable procedure.
[29]
Mr. Haba’s written submissions on this issue of
procedural fairness caused some confusion. While the Minister understood them
to be a ground invoking bias by the citizenship judge, Mr. Haba specified
during the hearing before this Court that he was in fact complaining that his
right to be heard had been violated. In any event, whether under any aspect of
procedural fairness, I find that the citizenship judge’s decision not to pursue
Mr. Haba’s citizenship application does not violate either aspect of procedural
fairness. There is no evidence of bias on the part of the decision-maker or of
Mr. Haba’s failure to be heard, nor any suspicion of unfair treatment against
him.
[30]
I acknowledge that, if the allegations made by
Mr. Haba in his affidavit supporting his application for judicial review were
true, they would indeed be troubling. It notes [translation]
“an extremely aggressive
and disrespectful approach” towards him, that
the citizenship judge “did not
let him answer questions and gave him the impression that she had already
decided the outcome of his application” and that
he was allegedly prevented from clarifying certain points, such as explaining
his arrival to the country and his search for employment. However, based on the
citizenship’s judge interview notes (which are included
in the decision), it appears that the hearing before the judge in no way
unfolded according to the bitter impression that Mr. Haba apparently retains. Far
from it.
[31]
In a compelling, meticulous and highly effective
exercise before this Court, counsel for the Minister skillfully went through
the citizenship judge’s interview notes and deconstructed Mr. Haba’s patchwork
allegations. She very convincingly showed that the judge systematically gave
Mr. Haba the chance to be heard and that the grievances that Mr. Haba is
raising today are unfounded and are more the result of a perversion of reality.
The citizenship judge’s notes are full of examples that establish that she
actually took the time to thoroughly analyze Mr. Haba’s file despite his
repeated attempts to sidestep certain questions and his failure to answer some
of them. If, on the mere reading of Mr. Haba’s affidavit, doubts could have
arisen as to compliance with Mr. Haba’s right to a full hearing, an analysis of
the record and interview notes would have quickly dispelled them.
[32]
Ultimately, when the record is read as a whole,
I am satisfied that there is no reason to believe that the citizenship judge
breached the principles of procedural fairness. Mr. Haba had the opportunity to
respond and explain himself, whether regarding his incorrect residency
calculations, the stamps in his passport or his assertions that some of the
countries that he visited in Europe do not automatically stamp passports. Mr.
Haba was entitled to a fair hearing, and the judge gave him a chance to answer
all her questions; the interruptions that Mr. Haba complained about were much
more indicative of the citizenship judge’s interest in obtaining all the
necessary information than an attempt to muzzle Mr. Haba.
[33]
Ultimately, Mr. Haba’s submissions that the
citizenship judge allegedly did not allow him to respond to her questions are
not corroborated in the least by the evidence in the record (Zarandi v Canada
(Citizenship and Immigration), 2015 FC 1036 [Zarandi] at para 35; Zhou
v Canada (Citizenship and Immigration), 2013 FC 313 at para 35). Quite the
contrary. The judge’s handwritten notes instead indicate that Mr. Haba lied to
her or changed the subject when she asked him certain questions.
[34]
I would add that the duty of procedural fairness
owed to applicants by citizenship judges is 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 (Charband v Canada (Citizenship and Immigration),
2016 FC 919 at para 22; Fazail v Canada (Citizenship and Immigration),
2016 FC 111 at para 46). The purpose of an interview with a citizenship judge
is to allow the applicant to answer, or at the very least address, the concerns
that gave rise to the interview, and applicants are not to be deprived of this
right. (Taleb v Canada (Citizenship and Immigration), 2015 FC 1147 at para
17; Johar v Canada (Citizenship and Immigration), 2009 FC 1015 [Johar]
at para 41). As a result, citizenship judges must raise their concerns during
the interview to give applicants the chance to respond to them. (Johar at
paras 43–44). It is clear that this is exactly what the citizenship judge was
doing in the case of Mr. Haba.
[35]
With respect to Mr. Haba’s allegations that the
citizenship judge appeared to be biased, they too do not stand up to analysis. The
test for actual bias or a reasonable apprehension of bias with respect to a
specific decision-maker is well known: “what would an
informed person, viewing the matter realistically and practically — and having
thought the matter through — conclude” (Committee
for Justice and Liberty v Canada (National Energy Board), [1978] 1 S.C.R. 369 at
page 394). The question that this Court must answer is therefore whether an
informed person, viewing the matter realistically and practically, would find
that the citizenship judge was biased (Zarandi at
para 33; Shahein v Canada (Citizenship and Immigration), 2015 FC 987 [Shahein]
at para 19).
[36]
As the Minister points out, such allegations
cannot rest on mere suspension, pure conjecture, insinuations, or mere
impressions of an applicant or his counsel. Rather, allegations of bias must be
supported by material evidence demonstrating conduct that derogates from the
standard (Arthur v Canada (Canada (Attorney General), 2001 FCA 223 at para
8). Mr. Haba did not submit any evidence of this nature. An allegation of bias is
serious, and this Court’s threshold for such a finding is high (Shahein at
para 21). Indeed, “an allegation of reasonable
apprehension of bias calls into question not simply the personal integrity of
the judge, but the integrity of the entire administration of justice” (R
v S (R.D.), [1997] 3 S.C.R. 484 at para 113). In the case of Mr. Haba, I
simply do not see any sign of bias in the citizenship judge’s behaviour or
comments.
[37]
Thus, despite Mr. Haba’s and his counsel’s
laudable efforts to identify an issue of procedural fairness in the citizenship
judge’s decision, there is no hint of any. Any way you look at it, I do not see
how this case raises an issue of procedural fairness.
[38]
Finally, I note that the allegations that the
citizenship judge reportedly lacked impartiality by preventing Mr. Haba from answering
questions should have been raised in a timely manner and not after his
citizenship application was denied (Moradi-Zirkohi v Canada (Citizenship and
Immigration), 2016 FC 463 [Moradi-Zirkohi] at para 21) As was the
case in Moradi-Zirkohi, Mr. Haba’s argument is late coming, given that
it was not raised before the citizenship judge. That in and of itself is
sufficient to disregard the claim.
[39]
The major disconnect that appears between actual
unfolding of the hearing and Mr. Haba’s negative recollection of it described
in his affidavit is a reminder of the importance of raising these kinds of
concerns at the earliest opportunity (Shahein au para 24). As Leblanc J.
aptly stated in Moradi-Zirkohi, this is “particularly
significant in a situation like this one where the interview, which is
conducted in front of the citizenship judge, is an informal, non-litigious
procedure that is normally not transcribed. Evaluating allegations this serious
on the sole basis of the applicant’s memory, which is often biased because the
citizenship application was rejected and was recorded in an affidavit sworn
several months after the fact, does not seem to me to be the best way to deal
with this kind of issue” (Moradi-Zirkohi at para 22).
IV.
Conclusion
[40]
For the reasons stated above, Mr. Haba’s
application for judicial review is dismissed. The refusal of Mr. Haba’s citizenship
application is a reasonable outcome under the Act and based on the evidence. On
the reasonableness standard, it is sufficient that the decision under judicial
review fall within a range of possible acceptable outcomes which are defensible
in respect of the facts and the law and that it be justified, transparent, and
reasonable. This is the case here. Furthermore, in all respects, the
citizenship judge met all procedural fairness requirements in dealing with Mr.
Haba’s application. Therefore, the citizenship judge’s decision is not vitiated
by any error that would warrant the Court’s intervention.
[41]
None of the parties proposed a question of
general importance for me to certify. I agree that there is none in this case.
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