Date:
20121219
Docket:
T-2111-11
Citation:
2012 FC 1516
Montréal, Quebec,
December 19, 2012
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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REZA AYATIZADEH
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an appeal by the Minister of Citizenship and Immigration [the Minister]
pursuant to subsection 14(5) of the Citizenship Act, RSC 1985, C-29 [the
Act] from the decision of a citizenship judge, dated November 4, 2011, granting
the respondent citizenship, on the basis that the citizenship judge erred in
finding that the respondent had met the residency requirement under paragraph
5(1)(c) of the Act.
[2]
The
respondent is a citizen of Iran. On July 4, 2003 he entered Canada and was landed as a permanent resident. He applied for citizenship on May 10, 2008. The
relevant period for calculating his residence in Canada is therefore May 10,
2004 to May 10, 2008.
[3]
On
April 28, 2009 a citizenship agent met with the respondent and asked him to
complete a residence questionnaire. The agent considered the documents the
respondent had submitted, including photocopies of his passports, pay stubs and
bills, and proceeded to send a memorandum to the citizenship judge outlining
her concern that the respondent had provided insufficient proof of his
residency in Canada during the relevant period.
[4]
The
respondent appeared before the citizenship judge on October 11, 2011. After the
hearing the respondent submitted additional evidence relevant to the period at
issue, including pay stubs, college transcripts and an attestation of
participation in a language training program.
[5]
The
entire decision of the citizenship judge reads as follows:
The applicant has (20) twenty days to provide us
with additional evidence to sustain his declaration made during the hearing.
I’ve attached the list of requested documents. AA [initials of Judge Ayache].
No RQ [Residence Questionnaire] given to applicant. No need! Applicant
submitted part of the requested documents. They are satisfactory. On balance
and according to the criteria as defined by Justice Reed in Re: Koo, I
approve the application.
[6]
The
issue in the present application is whether the citizenship judge erred in
finding that the respondent met the residence requirement set out in paragraph
5(1)(c) of the Citizenship Act.
[7]
A
citizenship judge’s decision that a person meets the residency requirement,
which is a question of mixed fact and law, is reviewable on the reasonableness
standard (El-Khader v Canada (Minister of Citizenship and Immigration),
2011 FC 328 at para 7; Canada (Minister of Citizenship and
Immigration) v Saad, 2011 FC 1508 at para 9).
[8]
Paragraph
5(1)(c) of the Act requires an applicant to have accumulated at least
three years of residence in Canada during the four years immediately preceding
the date of his or her application:
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5.
(1) The Minister shall grant citizenship to any person who
[…]
(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 :
[…]
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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[9]
The
jurisprudence has recognized three possible approaches to the meaning of the
word “residence” in paragraph 5(1)(c) of the Act: physical presence in
Canada (Re
Pourghasemi,
[1993] FCJ 232, 62 FTR 122), centralized mode of living in Canada (Re
Papadogiorgakis, [1978] 2 FC 208, 88 DLR (3d) 243 (TD)), or whether the person
“regularly, normally or customarily lives” in Canada (Re Koo (1992),
[1992] FCJ 1107, 59 FTR 27 [Koo]).
[10]
This
Court has held that any of these approaches are reasonable and it is open to
the citizenship judge to adopt any one of these schools of thought as long as
the chosen test is applied properly (Lam v Canada (Minister of Citizenship
and Immigration), [1999] FCJ 410 at para 14). However, some members of the
Court have found that only one of the tests is the correct one (see for example
El Ocla v Canada (Minister of Citizenship and Immigration), 2011 FC 533;
Dedaj v Canada, 2010 FC 777, 90 Imm LR (3d) 138; Martinez-Caro v
Canada (Minister of Citizenship and Immigration), 2011 FC 640; Hysa v
Canada (Minister of Citizenship and Immigration), 2011 FC 1416; Al
Khoury v Canada (Minister of Citizenship and Immigration), 2012 FC
536). In the case at bar, the Minister did not argue that the citizenship judge
applied the wrong test to determine residence for the purpose of paragraph 5(1)(c)
of the Act. It is therefore not necessary for me to address this issue on the
present appeal.
[11]
The
applicant submits that a citizenship judge who chooses to apply the reasoning
in Koo must make it clear that all relevant factors were addressed in
reaching the decision (Seiffert v Canada (Minister of Citizenship and
Immigration), 2005 FC 1072 at para 9 [Seiffert]). The applicant
claims that the citizenship judge in the case at bar erred by not mentioning
which factors of the Koo test were relevant to his decision. The applicant
further argues that three of the Koo factors require the citizenship
judge to determine when the respondent was physically present in Canada during
the relevant period and that the citizenship judge erred by not doing so.
[12]
According
to the respondent, the citizenship judge must leave no doubt that he or she
addresses the important and relevant factors (Seiffert at para 9). The
decision in the case at bar is reasonable because it clearly mentions the Koo
factors were addressed and that the required documents were satisfactory. With
respect, I disagree for the following reasons.
[13]
Inadequacy
of reasons is a significant flaw that contributes to the unreasonableness of a
citizenship judge’s decision (see, for example, Canada (Minister of
Citizenship and Immigration) v Al-Showaiter, 2012 FC 12 [Al-Showaiter];
Canada (Minister of Citizenship and Immigration) v Abdallah,
2012 FC 985 [Abdallah]; Canada (Minister of Citizenship and
Immigration) v Raphaël, 2012 FC 1039). On this question, I endorse the
following comments made by my colleague Justice Near in Al-Showaiter,
which were also supported by Justice de Montigny in Abdallah:
30. Given the ongoing discussion concerning
citizenship cases, it would be of great assistance to the Court if citizenship
judges state clearly in one or two sentences which test they are using and explain
their reasons for arriving at a particular conclusion. The detail required
in these reasons will vary given the test employed and the surrounding context.
However, even where it can be inferred that the physical presence in Canada test (which generally, in my view, is the test most in line with the legislation) is
being used, citizenship judges must state that this is the case. Citizenship
judges should also proceed to explain in more or less detail depending on the
facts of the case why they either accepted or rejected the evidence placed
before them. [Emphasis added.]
[14]
The
reasons in the case at bar are only one paragraph long and reproduced above in
their entirety. The decision states that the application was approved on the
basis of the Koo criteria and that the parts of the requested
documentation submitted by the respondent after the hearing were satisfactory.
There is no explanation as to which documents satisfied the citizenship judge
or why the documents he received subsequent to the hearing responded to his
concerns. All six factors from Koo did not need to be explicitly
reviewed and analyzed by the citizenship judge, but at the very least he had to
address the Koo factors which were relevant to his decision, depending
on the facts of the case, as required by this Court in Seiffert and Al-Showaiter,
above.
[15]
In
the case at bar, with the lack of adequate reasons I have identified, it is far
from clear how the citizenship judge arrived at his decision to approve the
respondent’s citizenship application based on the evidence before him. I will
therefore not attempt to undertake an analysis of what elements in the
evidence, if any, could have resulted in a reasonable decision (Justice Near
took a similar approach in Al-Showaiter at paragraphs 24-28).
[16]
For
these reasons, the decision of the citizenship judge is unreasonable. Therefore,
the appeal is allowed and the matter is sent back to a different citizenship
judge for redetermination.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
The appeal is
allowed. The matter is referred back to another citizenship judge for
redetermination.
“Danièle
Tremblay-Lamer”
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