Docket: T-2185-10
Citation: 2012 FC 374
Ottawa, Ontario, March 29, 2012
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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AMIDU OLANIYI SALAMI
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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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REASONS FOR JUDGMENT AND
JUDGMENT
I. INTRODUCTION
[1]
The
Applicant, Mr. Amidu Olaniyi Salami, appeals a decision of a Citizenship Judge
(Judge) in which his application for citizenship was denied on the basis that
he had not accumulated 1,095 days of residence in Canada within the four (4)
years preceding the date of application.
II. BACKGROUND
[2]
The
facts are straightforward. The Applicant, a citizen of Nigeria, became a
permanent resident on January 23, 2006. He applied for citizenship on August
25, 2009, less than four years after becoming a permanent resident. The
relevant period for accumulating residency is January 23, 2006 to August 25,
2009.
[3]
The
Applicant worked from March 2006 to October 2006 for one company and from
December 2006 to at least the end of the relevant period for another company.
[4]
This
second employer was a Canadian technology consulting company that provides
consulting and training programs for banking applications to financial
institutions in Africa and Europe.
[5]
During
the Applicant’s employment at this company, he travelled to Haiti, Ghana, South
Africa, Kenya and Nigeria to execute
projects on behalf of the company.
[6]
In
his citizenship application, the Applicant declared 492 days absence from Canada during the
relevant period, all of which (except 20 days) was for purposes of his
employment. By his own admission, the Applicant was deficient 278 days
residency of the 1,095 days requirement. This does not take into account 11
undeclared stamps in his passport which the Judge noted made the Applicant’s
residency shortfall even greater. (There is an apparent typographical error in
the judgment in referring to declared days of 492 when, in fact, the days
declared were 817. Nothing turns on this error.)
[7]
The
Judge held that even without the undeclared 11 stamps, the Applicant was short
278 days of the required 1,095. The Judge also found no compelling reason
to reduce or waive the strict minimum requirement of the Act.
[8]
On
this appeal the Applicant raised (a) breach of natural justice alleging that
the Judge made racial comments; and (b) error in the conclusion on residency.
III. ANALYSIS
[9]
The
standard of review applicable in this case has been well established in other
cases. On an issue of law, the standard is correctness (Chen v Canada
(Minister of Citizenship and Immigration), 2006 FC 85 at para 8), as it is
for breach of natural justice/reasonable apprehension of bias (Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12 at para 43). On the issue of
whether the Applicant met the residency requirements, this is a question of
mixed law and fact subject to a standard of reasonableness (Pourzand v Canada (Minister of
Citizenship and Immigration), 2008 FC 395 at paras 19-20).
A. Natural
Justice
[10]
This
allegation must be addressed first as it undermines the whole process of the
judgment under review. The Applicant claimed that the Judge made comments about
the Applicant’s ethnicity and background. Two specific incidents are cited:
- the
Judge asked how many “white Canadians” were employed by the Applicant’s second
employer; and
- the
Judge stated “you cannot bring all those nonsense that you practice in your
country to Canada”.
[11]
The
Applicant outlines these facts in an affidavit. There was no cross-examination
on the affidavit and no rebuttal evidence. Most importantly, there is no
transcript of the hearing.
[12]
There
is no basis for the Court to conclude that these words were not spoken although
the syntax of the second quote (“those nonsense”) is curious.
[13]
However,
even accepting that these words were used, there is no context in which to
consider the words. The words may be unfortunate but without context, there is
no way the Court can determine whether a reasonable, objective and informed
person could have a reasonable concern for bias. The evidence is too thin for
such a determination; a determination which would seriously affect the Judge.
[14]
Therefore,
I cannot assess the merits of the allegation and must dismiss the argument on
reasonable apprehension of bias. It should be noted that I do not reject the
argument on the basis that bias should have been raised at the time of the
hearing or later.
B. Error
of Law
[15]
In
my view, the judgment under review failed to address the threshold question of
whether the Applicant had established residency before considering the quantum
of “residency”.
[16]
In
Goudimenko v Canada (Minister of
Citizenship and Immigration), 2002 FCT 447, Justice Layden-Stevenson
(when on this Court) outlined the two stage inquiry in paragraph 5(1)(c)
of the Citizenship Act:
13 The difficulty with the appellant's
reasoning is that it fails to address the threshold issue, his establishment of
residence in Canada. Unless the threshold test is
met, absences from Canada are irrelevant. Canada (Secretary of State) v. Yu (1995), 31 Imm. L.R. (2d) 248
(F.C.T.D.); Re Papadorgiorgakis, supra; Re Koo, supra;
Re Choi, [1997] F.C.J. No. 740 (T.D.). In other words, a two-stage
inquiry exists with respect to the residency requirements of paragraph 5(1)(c)
of the Act. At the first stage, the threshold determination is made as to
whether or not, and when, residence in Canada has been established. If residence has
not been established, the matter ends there. If the threshold has been met, the
second stage of the inquiry requires a determination of whether or not the
particular applicant's residency satisfies the required total days of
residence. It is with respect to the second stage of the inquiry, and
particularly with regard to whether absences can be deemed residence, that the
divergence of opinion in the Federal Court exists.
[17]
In
Wong v Canada (Minister of Citizenship and Immigration), 2008 FC 731, I
made the same comment in the context of a case where the record gave rise to
the issue of whether and when residency was acquired and whether it had been
lost:
19 The first error is that the
Citizenship Judge erred by failing to make a finding of whether the Applicant
had established residency prior to the Period. My decision in Canada
(Minister of Citizenship and Immigration) v. Xiong, [2004] F.C.J. No. 1356,
2004 FC 1129, held that a citizenship judge must first consider, where the
record would support it, whether an applicant has established residence in the
time frame before the four-year relevant period and, if so, whether the
applicant had maintained that residence for the required amount of time during
the relevant period.
20 There was sufficient material in the
record to raise the issue of pre-existing residence but the Citizenship Judge
failed to embark on that enquiry. In that regard, the Citizenship Judge erred
in law. This is not to suggest that there are no problems with the documents on
this issue or certain inconsistencies in the record. However, in my view it was
the obligation of the Citizenship Judge to assess whether residency had been
established, particularly where the Applicant and his family had been in Canada
for 12 years, owning their own home, where members of the family had become
citizens of Canada and to where the Applicant, having travelled from Canada to
other points, including Hong Kong, always returned.
[18]
More
recently, Justice Mosley affirmed that two stage approach in Hao v Canada (Minister of
Citizenship and Immigration), 2011 FC 46:
24 The determination of residency by
citizenship judges has involved a two stage process. A threshold determination
is made as to whether residence has been established in Canada. If it has not been
established, the matter ends. If residence has been established, the second
stage requires a determination as to whether the applicant's residency
satisfies the statutorily prescribed number of days. It has remained open to
citizenship judges to choose either of the two jurisprudential schools
represented by Pourghasemi and Papadogiorgakis/Koo in making that
determination so long as they reasonably applied their preferred interpretation
of the statute to the facts of the application before them.
[19]
In
the present case, the Judge did not make an initial determination with respect
to whether and when the Applicant established residence in Canada. On the
facts of this case, that issue arises by virtue of the Applicant’s presence in
Canada from January 23, 2006 to at least December 2006 when he began work and
travel with his second employer.
[20]
As
Justice Zinn observed, in Canada (Minister of Citizenship and Immigration) v
Guettouche, 2011 FC 574, before one considers whether residency continued
despite frequent absences, one must determine whether residence in Canada had
been established initially.
13 Most troubling is the first issue
raised by the Minister - whether the judge erred in failing to determine that
Ms. Guettouche had initially established residence in Canada, before embarking
on a consideration of the Koo factors to determine whether that
residency had continued, notwithstanding her absences from Canada. This is of
particular concern as the record before the judge indicates although Ms.
Guettouche entered Canada on August 29, 2000, she left Canada with her husband
five months later, on February 3, 2001, and was continually absent from Canada
from that date until January 10, 2003, which was within the relevant period for
determining residency for citizenship purposes.
IV. CONCLUSION
[21]
For
these reasons, this appeal is granted and the matter is remitted to another
citizenship judge for a fresh determination.
JUDGMENT
THIS COURT’S
JUDGMENT is that the appeal is granted, and the
matter is to be remitted to another citizenship judge for a fresh
determination.
“Michael
L. Phelan”
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