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5. (1) The
Minister shall grant citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(c) is a permanent resident within the meaning of
subsection 2(1) of the Immigration and Refugee Protection Act, and
has, within the four years immediately preceding the date of his or her
application, accumulated at least three years of residence in Canada
calculated in the following manner:
(i) for every day during which the person was resident in Canada
before his lawful admission to Canada for permanent residence the person
shall be deemed to have accumulated one-half of a day of residence, and
(ii) for every day during which the person was resident in
Canada after his lawful admission to Canada for permanent residence the
person shall be deemed to have accumulated one day of residence;
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5. (1) Le ministre
attribue la citoyenneté à toute personne qui, à la fois :
a) en fait la demande;
b) est âgée d'au moins dix-huit ans;
c) est un résident permanent au sens du paragraphe 2(1) de la Loi
sur l'immigration et la protection des réfugiés et a, dans les quatre ans
qui ont précédé la date de sa demande, résidé au Canada pendant au moins
trois ans en tout, la durée de sa résidence étant calculée de la manière
suivante :
(i) un demi-jour pour chaque jour de résidence au Canada avant
son admission à titre de résident permanent,
(ii) un jour pour chaque jour de résidence au Canada après son
admission à titre de résident permanent;
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[3]
The
Citizenship Judge stated that he was not satisfied with the documents submitted
by the applicant in support of his residence in Canada and indicated that he
doubted the veracity of the absence dates indicated by the applicant. At the
hearing, the Citizenship Judge asked the applicant to provide additional
evidence. Three days later, he reviewed that evidence and concluded that the applicant
could not, on a balance of probabilities, show that he had resided in Canada
for three of the four years claimed.
[4]
In
arriving at this conclusion, the Citizenship Judge noted a number of
contradictions concerning the applicant’s business. The applicant asserted
that he was an optician and had opened an eyeglass supply company in Canada and
the United States. In order to summarize the array of evidence introduced in
this regard, the Citizenship Judge focused primarily on the company’s annual
reports and income tax returns. In short, the Citizenship Judge identified a
number of contradictions between the applicant’s statements and the documents
submitted as evidence.
[5]
The
applicant alleges that the Citizenship Judge had no cause to doubt his statements
and that his decision cannot be based on an unfounded claim, as described in Villarroel
v. M.E.I. (1980), 31 N.R. 50.
[6]
The
applicant also points out that the documentary evidence supports his statements
and that, since his family resides in Canada and his children are quite young,
it is only natural that he would have resided in Canada during that period.
[7]
Since he
was present during the relevant period longer than the minimum necessary to
meet the residence requirements, the applicant maintains that the Citizenship
Judge erred in rejecting his application.
[8]
Alternatively,
despite a determination that the applicant was not in Canada, the Citizenship
Judge should then have assessed the application on the basis of the criteria
from Re Koo [1993] 1 F.C. 286 in order to establish whether
his connection with Canada was sufficient. The applicant argues that, by
failing to apply the residence test set out in Re Antonios E.
Papadogiorgakis, [1978] 2 F.C. 208, which would have confirmed the nature
of his connection to Canada, the Citizenship Judge rendered a patently
unreasonable decision.
[9]
The
respondent asserts that, since the applicable standard of review is
reasonableness simpliciter and since the Citizenship Judge’s assessment
is in fact based on contradictions in the evidence provided by the applicant,
the application should be dismissed.
[10]
According
to the respondent, the fact that the applicant could not show the Citizenship
Judge when he was or was not in Canada justified the decision to dismiss his
citizenship application. As for the passport and the dates recorded therein,
the Citizenship Judge was unable to establish the exact number of days spent in
Canada.
[11]
The
respondent asserts that, since the applicant was unable to establish that he
had resided in Canada for 1,110 days, his argument concerning the relevant
period has no basis. Despite the more liberal approach advised in the case law
submitted by the applicant, the applicant’s credibility was at issue, and that
was the most important consideration.
[12]
The
arguments of both parties are such that the only issue for the Court to resolve
in this case is whether the Citizenship Judge’s decision concerning the
applicant’s residence and his interpretation of the evidence were unreasonable.
ANALYSIS
The Standard of Review
[13]
In order
to answer the preceding question, we must begin by determining the applicable
standard of review. In the past, the applicable standard of review for an
appeal from the decision of a Citizenship Judge was correctness: see Lam v.
Canada (M.C.I.) (1999), 164 F.T.R. 177; F.C.J. No. 410 (QL).
However, at paragraphs 14 to 18 of Lama v. Canada (M.C.I.), [2005]
F.C.J. No. 578 (QL), de Montigny J. describes developments in the case law
concerning the standard of review for a citizenship judge’s decision:
¶ 14
To answer that question, the applicable standard of review must first be
determined. In the past, certain judges relied on the decision by Lutfy J. (as
he then was) in Lam v. Canada (M.C.I.), ([1999] F.C.J.
No. 410) to determine that the appropriate standard of review for an
appeal of a decision by a Citizenship Judge was that of correctness.
¶ 15
More recently, there appears to have been a consensus on the standard of
reasonableness simpliciter (see inter alia the following cases: Chen v. Canada (Minister of Citizenship and
Immigration) 2004 FC 1693,
[2004] F.C.J. No. 2069; Rasaei v. Canada (Minister of Citizenship and
Immigration) 2004 FC 1688, [2004] F.C.J. No. 2051; Gunnarson
v. Canada (Minister of Citizenship and Immigration) 2004 FC 1592, [2004] F.C.J. No. 1913; Canada (Minister of Citizenship and Immigration) v.
Chen 2004 FC 848, [2004]
F.C.J. No. 1040; Canada (Minister of Citizenship and Immigration) v. Fu 2004 FC 60, [2004] F.C.J. No. 88; Canada (Minister of Citizenship and Immigration) v.
Chang 2003 FC 1472, [2003]
F.C.J. No. 1871; Canada (M.C.I.) v. Mueller,
[2005] F.C. 227.
¶ 16 My colleague Tremblay-Lamer
J. justified this approach as follows:
In the case at bar,
where the court must verify that the Citizenship Judge has applied one of the
accepted residency tests to the facts it raises, in my view, a question of
mixed fact and law (Director of Investigation and Research v. Southam Inc., [1997] 1 S.C.R. 748). Taking into account that some degree of deference is
owed to the specialized knowledge and experience of the Citizenship Judge, I
would conclude that the applicable standard of review is that of reasonableness
simpliciter. (Canada (M.C.I.) v. Fu,
[2004] F.C.J. No. 88, at paragraph 7).
¶ 17
Considering the
pragmatic and functional approach developed by the Supreme Court of Canada, inter
alia in Dr. Q v. College of Physicians and Surgeons of British
Columbia, [2003] 1 S.C.R. 226
and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, it is my opinion
that this standard of review is in fact the most appropriate in the
circumstances. Accordingly, it would be appropriate to show deference to the
extent that it is established that the judge understood the case law and that
he weighed the facts and applied them to the test provided under the Act.
¶ 18
A careful review of this Court's case law indicates that different
interpretations have been accepted regarding the interpretation that must be
given to the residency requirement found under paragraph 5(1)(c) of the
Act. A Citizenship Judge can adopt any of these different interpretations to
determine whether the applicant meets the requirements of the Act; insofar as
the judge has not made any unreasonable error in applying this interpretation
to the evidence that was submitted to him, this Court will not intervene.
[14]
In light
of the case law referred to above, the applicable standard of review is
reasonableness simpliciter.
The Residence
Requirement Under the Citizenship Act
[15]
The
Citizenship Judge asked the applicant to supply annual reports from his company.
On the basis of that information, the Citizenship Judge determined that the
applicant had contradicted himself several times and had not resided in Canada
as he claimed.
[16]
First, the
applicant alleges that he really was in Canada for the minimum number of days
required under the Citizenship Act. However, the Citizenship Judge
expressed serious doubts on that point, stating that he could not conclude that
the applicant really had been in Canada for the 1,110 days as claimed. Second,
the applicant alleges that the Citizenship Judge had to interpret Re Koo,
supra, in order to establish his connection with Canada.
[17]
As listed
by my colleague de Montigny J. in Xu v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 868 (QL) at paragraph 17, the following are
the essential criteria from Re Koo:
In order to
determine whether the Applicant "regularly, normally or customarily
lives" in Canada, she turned her mind to the six questions suggested by
Madam Justice Reed in Re Koo, [1993] 1 F.C. 286, which read as
follows:
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
employment abroad?
6)
what is the quality of the connection with Canada: is it more substantial
than that which exists with any other country?
[18]
Concerning
Question 1, while it is true that the applicant was absent during several
trips, he was in Canada for 1,110 days. Since the Citizenship Judge could not
provide persuasive evidence in support of his claim that this was not true, it
seems fair to me to state that the applicant was, in fact, present in Canada
before submitting his citizenship application. The fact that the judge had
difficulty deciphering the stamps in the applicant’s passport does not justify
his doubts concerning the number of days of absence from Canada. The only
uncontested evidence supports the applicant’s statement. Concerning Questions
2 and 3, as was mentioned previously, his wife and two children are Canadian
citizens. The trips that he made were generally of short duration and for
business purposes.
[19]
According
to the Citizenship Judge, since he believed that the applicant was not in
Canada during the days stated, Question 4 from the test in Re Koo, supra,
would not normally be assessed in the applicant’s favour. However, as was
noted in Yang v. Canada (Minister of Citizenship and Immigration) (2002),
216 F.T.R. 117; F.C.J. No. 114 (QL), a Citizenship Judge who does not consider
all the relevant evidence concerning the existence of a pied-à-terre in Canada
applies a very restrictive approach in his or her interpretation of the
residence requirement. This finding by the Citizenship Judge is not based on
evidence, or even logic. As I indicated in paragraph 22 of Yang, supra:
He
placed greater emphasis on the requirement that an applicant must be physically
present in Canada and erred in assessing that the fourth factor of the test in Re
Koo (physical presence) can be considered the most important of the six.
[20]
Furthermore,
the Citizenship Judge’s decision appears to address only the contradictions
regarding the applicant’s business. At no time does he apply the reasoning in Re
Koo, supra, to determine that he had serious doubts concerning the
applicant’s residence. The applicant not only submitted a comprehensive list
of his travel destinations, but also illustrated his attachment to the country
by supplying complete documentation concerning his business and other
activities in Canada. Apparently, the Citizenship Judge suspected that the
applicant’s Canadian income was not sufficient to support his family, and
therefore he had to exploit opportunities outside the country. However, the
fact that the bank had stated in a letter that the applicant had over
$3,000,000.00 in investments was overlooked. Since the evidence offered by the
applicant appears to be truthful and since the Citizenship Judge does not
address the issue of the number of days in his decision, it seems clear to me
that the applicant was, in fact, present in Canada for the required number of
days.
[21]
With
respect to Question 5, the applicant made 11 trips outside of Canada during the
relevant period, all of which were on business or for personal reasons, for
example, to manage his mother-in-law’s estate after she died. In support of
this statement, the applicant not only provided the Citizenship Judge with
copies of the exact departure and return dates from his passport, but also
submitted copies of catalogues from the optical trade shows that he attended.
The evidence shows that the applicant’s longest trip was for 46 days, while the
others averaged between 7 and 18 days. Thus, it is clear that these were
temporary absences.
[22]
Finally,
Question 6 stipulates that the applicant must have established a connection
with Canada. The applicant submitted evidence of a lease, telephone
statements, accounts with Videotron, Bell and Rogers. He provided evidence of
his company’s incorporation, his bank transaction records and copies of his
income tax returns. It should also be noted that his wife has been a Canadian
citizen since August 21, 2003, that his two children were born in Canada in
2003 and 2004 and that he asserts that he has to be involved in the care of his
children, owing to their young age. The applicant shows no other factual
attachment to any other country. Moreover, a number of his business trips to
meetings in other countries were to third countries, not Morocco. As I
mentioned in Badjeck v. Canada (Minister of Citizenship and Immigration) (2001),
214 F.T.R. 204; F.C.J. No. 1804 (QL) at paragraph 29:
The plaintiff further submitted that, contrary to what was
found by the citizenship judge, the residence condition mentioned in s. 5(1)(c)
of the Act involves questions more fundamental than simply counting the days
spent in Canada. Thus, the nature of the plaintiff's attachment and loyalty to
Canada demonstrate and establish a real attachment to Canada: Lam v. Canada
(Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 (QL)
(F.C.). There is no attachment similar to that which he has with Canada to
any other country or any significant link to any country other than Canada:
Canada (Minister of Citizenship and Immigration) v. Yang, [1999] F.C.J.
No. 423 (QL) (F.C.)
[23]
There is
no doubt that the applicant has demonstrated his connection to Canada.
[24]
While it
may be true that the evidence provided by the applicant contained some
contradictions, they were irrelevant in terms of determining his residence in
Canada. Documents such as his company’s annual reports and his visits to the
doctor are not indicative of the fact that the applicant was not present in
Canada. If a citizenship judge suspects that the applicant was physically
present in Canada for too few days, he must then examine whether the applicant
has a sufficient connection with Canada. However, in this case, the
Citizenship Judge did not show in his decision that the applicant was not
present in Canada for 1,095 days. He merely stated that, since he noted
contradictions in the annual reports, this meant that the applicant was not in
Canada and therefore did not satisfy the criterion of 1,095 days. Prima
facie, this is absurd, and it becomes even more ridiculous if we consider
that the Citizenship Judge did not even assess the applicant’s connection with
Canada, as set out by the case law in Re Koo, supra.
[25]
If the
Citizenship Judge was unable to demonstrate that the applicant did not meet the
criteria set out in that decision, he could then reasonably decide that the
latter did not meet the residence requirements set out in subsection 5(1) of
the Citizenship Act. However, in this case, it seems to me that the
Citizenship Judge considered none of the criteria from Re Koo, supra, and
therefore his decision to dismiss the citizenship application by the applicant
is not based on reasonable grounds.
[26]
The
respondent alleges that the Citizenship Judge did not have to interpret Re
Koo, since Canadian residence could not be established, as provided in Ahmed
v. Canada (Minister of Citizenship and Immigration) (2002), 225 F.T.R. 215;
F.C.J. No. 1415 (QL). Clearly, the facts in Ahmed, supra,
are totally unlike those in the present case. Mr. Ahmed had left Canada
15 months after his arrival and had not re-entered the country before
applying for citizenship; under such circumstances, it was not necessary to
analyse the applicant’s residence, as suggested in Re Koo. That is of
little consequence in this case, since this applicant clearly established his
residence here before initiating his citizenship application.
[27]
I concur
with the applicant’s argument that the Citizenship Judge misinterpreted the
case law and the evidence. In light of the questions set out in Re Koo,
supra, and the evidence available to the Citizenship Judge, I am not
convinced that the latter understood the case law properly and, in my opinion,
he did not analyse the relevant criteria.
JUDGMENT
The decision of the
Citizenship Judge was therefore unreasonable. Consequently, I allow the
application for judicial review and refer the matter back to a different
citizenship judge.
“Paul
U.C. Rouleau”
Certified
true translation
Michael
Palles
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