Docket: T-1399-11
Citation: 2012 FC 333
Ottawa, Ontario, March 20,
2012
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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BASMA AHMED AL TAYEB
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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 seeks judicial review of a decision of a Citizenship Judge (Judge)
denying citizenship on the basis that the Applicant had not met the residency
requirements of the Citizenship Act, RSC 1985, c C-29. In this instance,
the basis of the denial was that the Applicant was 750 days under the required
1,095 days of residency required.
II. BACKGROUND
[2]
The
Applicant, Ms. Al Tayeb, is a citizen of Saudi Arabia. She became
a permanent resident of Canada on July 1, 1997 and made her most recent
citizenship application on February 20, 2008. Therefore, the relevant period
for assessing whether she met the residency requirement is February 20, 2004 to
February 20, 2008 (the Relevant Period).
[3]
The
Applicant was registered at the University of Toronto between
September 2003 and February 2004. After that she returned to Saudi Arabia to continue
her studies. The Applicant’s reason for changing schools was variously
described as facilitating a change in her study program or because the Canadian
study program was too difficult.
[4]
In
addition to the Applicant’s course of studies from September 2003 to the
present, she worked for her family’s company selling Canadian products and
providing training in the use of physiotherapy equipment exported from Canada
to Saudi
Arabia.
The company is owned by the Applicant’s parents who are also the directors and
the officers (except for the Applicant who is a Vice President).
[5]
The
Applicant pays taxes in Canada, has an OHIP card, a SIN card, Canadian
credit cards and Canadian bank accounts, owns property with her parents and
lives in a condo owned by her parents. Further, the Applicant has a child born
in Canada, and a
brother who is also a Canadian citizen.
[6]
In
the Applicant’s citizenship application, she admitted that she was
significantly short of the required days of residence in Canada. She
admitted to being present 383 days, later adjusted by the Judge.
[7]
The
Judge decided this application using the test in Pourghasemi (Re) (FCTD)
(1993), 62 FTR 122, which is basically the “quantitative” method of considering
“residency” whereby an applicant is required to have 1,095 days of physical
presence in Canada. The Applicant was clearly and significantly deficient in
terms of physical presence in Canada during the Relevant Period.
III. ANALYSIS
[8]
This
Court has created considerable confusion by establishing at least two
approaches to considering “Canadian residence” for purposes of citizenship –
the quantitative approach (as earlier described) and the qualitative approach
(of which there are two streams).
[9]
I
do not intend to add to that debate as this case can be resolved on a different
basis. I would, however, observe that the principle of reviewing questions of
law from a tribunal or a court on a reasonableness standard can lead to the
very kind of problem now seen in citizenship matters. There are at least two
reasonable interpretations of law and an applicant is confined to the arbitrariness
of luck as to which legal view is applied by a citizenship judge. The time may
come when a judge will be unable or unwilling to decide an appeal because of
this conflict which may invite the Court of Appeal to resolve the conundrum.
This is not that case.
[10]
This
case may be determined more simply on the basis that the Judge did not engage
in the type of inquiry mandated regardless of which of the two approaches to
residency is eventually adopted.
[11]
In
Goudimenko v Canada (Minister of
Citizenship and Immigration), 2002 FCT 447, Layden-Stevenson J. (as she
then was) laid out a two-stage inquiry for determining whether the residency
requirement under the Citizenship Act had been met:
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.
[12]
In
both Canada (Minister of
Citizenship and Immigration) v Xiong, 2004 FC 1129, and Wong
v Canada (Minister of
Citizenship and Immigration), 2008 FC 731, this Court referred to the
first stage inquiry being engaged where the appeal record raises the issue.
[13]
Justice
Mosley in Hao v Canada (Minister of
Citizenship and Immigration), 2011 FC 46, reaffirmed that approach:
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.
[14]
The
facts of this case raise the issue of pre-existing residency. The Judge never
considered whether residency had been established prior to the Relevant Period.
Unlike Canada (Minister of Citizenship and Immigration) v Guettouche,
2011 FC 574, where Justice Zinn might have been prepared to infer that the
threshold issue had been decided because the judge considered the Koo
(qualitative) test, no such inference can be drawn by virtue of adopting the Pourghasemi
(quantitative) test.
IV. CONCLUSION
[15]
Therefore,
this appeal is granted, and the matter is referred back to a different
citizenship judge for a new determination.
JUDGMENT
THIS COURT’S
JUDGMENT is that the appeal is granted, and the
matter is to be referred back to a different citizenship judge for a new
determination.
“Michael
L. Phelan”
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