Date: 20061130
Docket: T-442-06
Citation: 2006 FC 1450
Ottawa, Ontario, November 30,
2006
PRESENT: THE HONOURABLE MR. JUSTICE ROBERT L. BARNES
BETWEEN:
MICHELLE
COLLIER
Appellant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an appeal by Michelle Collier from an unfavourable decision of the Citizenship
Court
rendered on January 10, 2006. This is Ms. Collier’s second appeal in
connection with her application for Canadian citizenship which she first made
on September 19, 2003. The appeal is brought under section 14(5) of the Citizenship
Act, R.S.C. 1985, c. C-29 (Act).
Procedural Background
[2]
At
issue throughout this proceeding is the question of Ms. Collier’s Canadian
residency and, specifically, whether she had complied with section 5(1)(c) of
the Act which requires 3 years of residency in the 4 years preceding an
application for the grant of citizenship.
[3]
It
is undisputed that, for much of the time since Ms. Collier and her family
arrived in Canada in 1999, she
has lived elsewhere. Between 1998 and 2002 she was living mainly in Florida attending
the University of South
Florida on an athletic scholarship. After 2002 Ms. Collier played professional
volleyball in a number of countries and, in the summer of 2003, she trained
with the Canadian National Women’s Volleyball team. It was on the advice and
recommendation of Volleyball Canada that she made her application for
citizenship in the hope of playing for Canada.
[4]
The
first citizenship decision denied Ms. Collier’s application on the basis that
she had not “regularly, normally or customarily” lived in Canada during the
required residency period. The Citizenship Court described the legal
test it was applying as follows:
In Re Koo
[1992] F.C.J. No. 1107, Reed J. after reviewing the case law interpreting the
residence requirement set out in the Citizenship Act notes that the
jurisprudence which is now firmly entrenched does not require physical presence
for the whole1,095 days and concludes that the residency test can be
articulated as follows: is Canada the place where the applicant “regularly,
normally or customarily lives”? or another formulation of the same test: Is
Canada the country in which the applicant has centralized his or her mode of
existence?...
[5]
On
appeal, Justice Paul Rouleau set aside the Citizenship Court decision on the
ground that it had failed to properly apply the six factors identified in Re
Koo, (1992) 59 F.T.R. 27 for establishing Canadian residency: see Collier
v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1866, 2005 FC 1511.
Although Justice Rouleau found several errors in the application of the Koo
factors to the evidence, he was particularly concerned with the failure to
identify an index country with which Ms. Collier had had a stronger connection
than Canada. He held
that it was also an error for the Citizenship Court to treat Ms. Collier’s
career as a surrogate for an index country. Justice Rouleau concluded his
decision as follows:
19 Given
my assessment of the Koo factors in the present case, I am convinced that the
decision against the applicant cannot be allowed to stand. The matter is
remitted to a different Citizenship Judge, to be considered with respect to the
reasons I have set out in this Order.
Justice Rouleau’s Order set out a similar
direction to the Citizenship Court to reconsider the case “having regard to
the present Reasons for Order”.
[6]
When
Ms. Collier’s citizenship application was redetermined, the Citizenship Judge
did not apply the Re Koo decision, above, but, instead, applied the
decision of Justice Francis Muldoon in Re Pourghasemi (1993), 62 F.T.R.
122, [1993] F.C.J. No. 232. The Pourghasemi decision strictly equated
residency with actual physical presence in Canada and, on that
standard, Ms. Collier did not qualify. The Citizenship Judge went on, in the
alternative, to consider Ms. Collier’s situation against the somewhat more
flexible test of residency described in Re Papadogiorgakis,
[1978] F.C.J. No. 31, [1978] 2 F.C. 208 but still found her claim to be
unmeritorious. Ms. Collier’s failure to qualify under the Papadogiorgakis test
was based on the fact that she had not established her Canadian residency
before departing for school in Florida and did not do so until returning to Canada in May,
2003.
Issues
[7]
Ms.
Collier has challenged the second decision of the Citizenship Court on a number
of grounds. She contends that the hearing of her case was perfunctory and
abbreviated and not in accordance with the duty of fairness. She also argues
that the Citizenship Court erred by “skipping back and forth” between various
accepted approaches for establishing residency as in the case of Canada v.
Wall, [2005] F.C.J. No. 146, 2005 FC 110 at para. 22. Finally, she says
that the Citizenship Court erred by failing to follow Justice Rouleau’s
direction on appeal to reconsider her case in accordance with his elucidation
of the Koo factors.
Analysis
[8]
I
do not accept the Appellant’s arguments that she was denied a fair hearing or
that the Citizenship
Court
erred in its treatment of the residency tests it adopted. There is nothing in
the record to establish that Ms. Collier was denied the opportunity to make her
case before the Citizenship Court. Although Ms. Collier’s affidavit
describes evidence she wanted to put to the Citizenship Court, she does
not assert that she was denied the opportunity to do so. The impression left
is that she was waiting to be asked about certain matters and, when that did
not happen, she failed to volunteer the information. It was for Ms. Collier to
make out her case for citizenship and the Citizenship Court cannot be
faulted for failing to anticipate or to draw out information that she believed
to be important. If Ms. Collier needed more time all she needed to do was ask
for it.
[9]
Ms.
Collier’s argument that the Citizenship Court mixed up the legal tests
for residency is also without merit. All that the Citizenship Court did was to
alternatively apply two of the three accepted tests for residency but it did
not conflate or confuse those tests. Indeed, the decision of the Citizenship
Court
on the merits is thoughtful, thorough and in conformity with the legal
authorities it applied.
[10]
The
underlying problem with this case stems from the lack of unifying jurisprudence
in this Court and in the Citizenship Court concerning the test for
establishing Canadian residency. Had Justice Rouleau not given any direction
to the Citizenship
Court
to apply the Koo factors, the approach taken here could not be faulted.
That is so because this Court has said that the Citizenship Court is free to
apply any of three judicially approved residency tests: see Rizvi v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 2029, 2005 FC 1641 at
para. 12; Eltom v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1979, 2005 FC 1555 at
para. 28 and Canada (Minister of Citizenship and Immigration)
v. Wall,
[2005] F.C.J. No. 146, 2005 FC 110 at paras. 11-13.
[11]
However,
in the face of Justice Rouleau’s direction to apply the Re Koo
case to Ms. Collier’s application, it was not then open to the Citizenship
Court
to adopt one or both of the other residency tests. As a subordinate Court, the
Citizenship
Court
has a legal duty to abide by the directions of this Court whether it agrees
with those directions or not. Here the fundamental principle of stare decisis
applies as stated by the Supreme Court of Canada in Woods Manufacturing Co.
Ltd. v. The King, [1951] S.C.R. 504 at page 515:
There is this
to be added. It is fundamental to the due administration of justice that the
authority of decisions be scrupulously respected by all courts upon which they
are binding. Without this uniform and consistent adherence the administration
of justice becomes disordered, the law becomes uncertain, and the confidence of
the public in it undermined. Nothing is more important than that the law as
pronounced, including the interpretation by this Court of the decisions of the
Judicial Committee, should be accepted and applied as our tradition requires;
and even at the risk of that fallibility to which all judges are liable, we
must maintain the complete integrity of relationship between the courts. If
the rules in question are to be accorded any further examination or review, it
must come either from this Court or from the Judicial Committee.
To the same effect is the holding of the
Federal Court of Appeal in Canada (Commissioner of Competition) v. Superior
Propane Inc., [2003] F.C.J. No. 151, 2003 FCA 53, where Justice Marshall
Rothstein stated:
[54] The
principle of stare decisis is, of course, well known to lawyers and judges.
Lower courts must follow the law as interpreted by a higher coordinate court.
They cannot refuse to follow it: Re Canada Temperance Act, Re Constitutional
Questions, Re Consolidated Rules of Practice, [1939] 4 D.L.R. 14 at 33 (Ont. C.A.), aff'd
[1946] 2 D.L.R. 1 (S.C.C.); Woods Manufacturing Co. v. Canada (Attorney
General), [1951] S.C.R. 504 at 515. This principle applies equally to tribunals
having to follow the directions of a higher court as in this case. On
redetermination, the duty of a tribunal is to follow the directions of the
reviewing court.
[12]
This
Court’s earlier direction to the Citizenship Court to reconsider Ms.
Collier’s case “with respect to the reasons” given was not an exercise of mere
whimsy. The fact that the redetermination was carried out by a Citizenship
Judge with a different view of the law from the first does not mean that he
could ignore Justice Rouleau’s direction to apply the Koo factors.
[13]
In
the absence of judicial direction, the approach taken could not have been criticized
because the Citizenship Judge would have been free to adopt any of the accepted
legal tests for assessing Ms. Collier’s Canadian residency. It is obvious ,
however, that Justice Rouleau accepted as correct the decision by the first Citizenship
Judge to apply the six residency factors identified in Re Koo, above;
but he went on to find reviewable errors in the application of those factors to
the evidence. Had Justice Rouleau remitted the case back to the first Citizenship
Judge for redetermination, it is undeniable that a re-application of the Koo
principles to the evidence would have been expected and required. The fact
that the case was remitted to another Citizenship Judge does not and should not
justify a different approach.
[14]
Quite
apart from Justice Rouleau’s acceptance of Koo as authoritative was the
added value of ensuring consistency in the application of the law to a single case.
Notwithstanding the varying approaches to the issue of residency under the Act,
the direction given by Justice Rouleau afforded to Ms. Collier the benefit of a
consistent approach. It does not engender confidence in the system for
conferring citizenship if an applicant is, in the course of a single application,
subjected to different legal tests because of the differing legal views of the Citizenship
Court.
[15]
I
do not mean by this decision to criticize the second decision of the Citizenship
Court
on the merits. Indeed, that decision contains a careful and well-reasoned
analysis of the legislation. It also accords with a line of analysis which is
supported by jurisprudence from this Court. However, when this Court gives a
direction to the Citizenship Court to apply the law in a certain way to a
particular case, the principle of stare decisis obliges the Citizenship
Court
to abide by the direction. In short, it was not open to the second Citizenship
Judge on a redetermination to ignore Justice Rouleau’s direction to apply the Koo
principles to the evidence and the failure to follow that direction is an error
of law.
[16]
Unfortunately,
it is necessary to remit this matter once again to the Citizenship Court for
redetermination in accordance with Justice Rouleau’s initial direction. In
order to avoid any uncertainty around the test to be applied, I will direct
that this matter be remitted to the first Citizenship Judge for a
reconsideration in conformity with Justice Rouleau’s direction.
[17]
Given
the difficulties experienced by Ms. Collier in having her application correctly
dealt with, I believe this to be an appropriate case for an award of costs in
her favour. I will fix costs on this appeal in the amount of $750.00 inclusive
of disbursements.
JUDGMENT
THIS COURT ADJUDGES that this
application be remitted to the first Citizenship Judge for a reconsideration in
conformity with Justice Rouleau’s direction.
THIS COURT FURTHER
ADJUDGES that the Appellant is awarded costs on this appeal in the amount of
$750.00 inclusive of disbursements.
“ R.
L. Barnes ”
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