Date: 20091113
Docket: T-1948-08
Citation: 2009 FC 1157
Ottawa, Ontario, November 13,
2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
SLAVOLJUPKA
ZEGARAC
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
(Correction
to name of Applicant’s Counsel at para. 2 and Counsel Sheet)
I. Introduction
[1]
A
Citizenship Judge must provide adequate reasons to ensure for an understanding
as to why citizenship was granted.
II. Judicial Procedure
[2]
This
is an appeal by the Minister of Citizenship and Immigration of a decision of a
Citizenship Judge, dated June 23, 2008, granting the Respondent citizenship.
The Applicant makes this appeal on the grounds that the Citizenship Judge
committed a reviewable error by providing insufficient reasons for his
conclusion that the Respondent had satisfied the residency requirement set out
in paragraph 5.(1)(c) of the Citizenship Act, 1974-75-76, c. 108.
(N.B. Counsel for the Applicant is Ms. Camille N. Audain; the Respondent has
not filed any materials and was represented by her husband, Mr. Dusan Zegarac
as she is out of the country).
III. Background
[3]
The
Respondent, Ms. Slavoljupka Zegarac, is a citizen of Serbia who landed in Canada on June 9,
1994. On April 4, 2006, Ms. Zegarac applied for citizenship.
[4]
When
Ms. Zegarac applied for citizenship, she noted that she travelled outside of
Canada twice; between June 15, 2001 and August 10, 2001 and again between April
10, 2005 and May28, 2005 (Applicant’s Memorandum of Fact and Law at para. 3).
[5]
The
Applicant takes issue with Ms. Zegarac’s residency in Canada during this
period. The Applicant points to evidence that was before the Citizenship Judge
which shows Ms. Zegarac travelled to Serbia in 2001 and did not return to Canada
until 2005 (Applicant’s Memorandum of Fact and Law at para. 4). If the
Citizenship Judge had accepted this evidence, Ms. Zegarac would have failed to
meet her residency requirements under paragraph 5.(1)(c) of the Citizenship
Act.
IV. Issue
[6]
Did
the Citizenship Judge fail to give sufficient reasons for allowing the
Respondent’s application?
V. Decision under Review
[7]
Ms.
Zegarac filed her application for citizenship on April 4, 2006 (Tribunal Record
(TR) at p. 1). Since the Act requires citizenship applicants to acquire at
least three years of residence in Canada in the four years
preceding their application for citizenship, Ms. Zegarac had to acquire three
years of residence between April 4, 2002 and April 4, 2006.
[8]
The
Citizenship Judge found that Ms. Zegarac had acquired 48 days of absence from Canada during the
relevant period and accordingly granted her application for citizenship on
October 27, 2008 (TR at p. 1).
VI. Relevant Legislative Provisions
[9]
Subsection
5.(1) of the Citizenship Act states:
|
Grant of citizenship
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;
(d) has an adequate knowledge of one of the official
languages of Canada;
(e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and
(f) is not under a removal order and is not the subject
of a declaration by the Governor in Council made pursuant to section 20.
|
Attribution de la citoyenneté
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;
d) a une connaissance suffisante de
l’une des langues officielles du Canada;
e) a une connaissance suffisante du
Canada et des responsabilités et avantages conférés par la citoyenneté;
f) n’est pas sous le coup d’une
mesure de renvoi et n’est pas visée par une déclaration du gouverneur en
conseil faite en application de l’article 20.
|
[10]
Subsections
1.4(2) and 14.(5) of the Citizenship Act state:
|
Advice to Minister
14. (2) Forthwith after making a
determination under subsection (1) in respect of an application referred to
therein but subject to section 15, the citizenship judge shall approve or not
approve the application in accordance with his determination, notify the
Minister accordingly and provide the Minister with the reasons therefor.
…
Appeal
14. (5) The Minister or the applicant
may appeal to the Court from the decision of the citizenship judge under
subsection (2) by filing a notice of appeal in the Registry of the Court
within sixty days after the day on which
(a) the
citizenship judge approved the application under subsection (2); or
(b)
notice was mailed or otherwise given under subsection (3) with respect to the
application.
|
Information du ministre
14. (2) Aussitôt
après avoir statué sur la demande visée au paragraphe (1), le juge de la
citoyenneté, sous réserve de l’article 15, approuve ou rejette la demande
selon qu’il conclut ou non à la conformité de celle-ci et transmet sa
décision motivée au ministre.
[ … ]
Appel
14. (5) Le ministre
et le demandeur peuvent interjeter appel de la décision du juge de la citoyenneté
en déposant un avis d’appel au greffe de la Cour dans les soixante jours
suivant la date, selon le cas :
a) de l’approbation de la demande;
b) de la communication, par courrier ou tout autre moyen, de la
décision de rejet.
|
[11]
Section
21 of the Federal Courts Act, R.S., 1985, c. F-7 states:
|
Citizenship appeals
21. The Federal
Court has exclusive jurisdiction to hear and determine all appeals that may
be brought under subsection 14(5) of the Citizenship Act.
|
Appels en matière de citoyenneté
21. La Cour fédérale a compétence exclusive en matière d’appels
interjetés au titre du paragraphe 14(5) de la Loi sur la citoyenneté.
|
[12]
Rule
300 of the Federal Courts Rules, SOR/2004-283 states:
|
Application
300. This Part applies to
(a) applications for judicial
review of administrative action, including applications under section 18.1 or
28 of the Act, unless the Court directs under subsection 18.4(2) of the Act
that the application be treated and proceeded with as an action;
(b) proceedings required or
permitted by or under an Act of Parliament to be brought by application,
motion, originating notice of motion, originating summons or petition or to
be determined in a summary way, other than applications under subsection
33(1) of the Marine Liability Act;
(c) appeals under subsection
14(5) of the Citizenship Act;
(d) appeals under section 56 of
the Trade-marks Act;
(e) references from a tribunal
under rule 320;
(f) requests under the
Commercial Arbitration Code brought pursuant to subsection 324(1);
(g) proceedings transferred to
the Court under subsection 3(3) or 5(3) of the Divorce Act; and
(h) applications for
registration, recognition or enforcement of a foreign judgment brought under
rules 327 to 334.
|
Application
300. La présente partie
s’applique :
a) aux demandes de contrôle judiciaire
de mesures administratives, y compris les demandes présentées en vertu des
articles 18.1 ou 28 de la Loi, à moins que la Cour n’ordonne, en vertu du
paragraphe 18.4(2) de la Loi, de les instruire comme des actions;
b) aux instances engagées sous le régime
d’une loi fédérale ou d’un texte d’application de celle-ci qui en prévoit ou
en autorise l’introduction par voie de demande, de requête, d’avis de requête
introductif d’instance, d’assignation introductive d’instance ou de pétition,
ou le règlement par procédure sommaire, à l’exception des demandes faites en
vertu du paragraphe 33(1) de la Loi sur la responsabilité en matière maritime;
c) aux appels interjetés en vertu du
paragraphe 14(5) de la Loi sur la citoyenneté;
d) aux appels interjetés en vertu de
l’article 56 de la Loi sur les marques de commerce;
e) aux renvois d’un office fédéral en
vertu de la règle 320;
f) aux demandes présentées en vertu du
Code d’arbitrage commercial qui sont visées au paragraphe 324(1);
g) aux actions renvoyées à la Cour en
vertu des paragraphes 3(3) ou 5(3) de la Loi sur le divorce;
h) aux demandes pour l’enregistrement,
la reconnaissance ou l’exécution d’un jugement étranger visées aux règles 327
à 334
|
VII. Standard
of Review
[13]
In
the case of Canada (Minister of Citizenship and Immigration)
v. Mahmoud,
2009 FC 57, 78 Imm. L.R. (3d) 254, Justice Roger Hughes held that if a
citizenship judge fails to provide sufficient reasons for a decision “such that
the Minister cannot determine whether to appeal nor upon which this Court can exercise
its appellate function,” then there has been a breach of natural justice which
is reviewable on a standard of Correctness (Mahmoud at
para. 9).
[14]
In
the case of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, the Supreme Court of Canada held that Correctness mandates the
reviewing court to undertake its own analysis of the question. The Court is not
to be deferential to the agency’s reasoning, but rather is to question whether
the agency’s decision was correct (Dunsmuir at para. 50).
VIII. Summary of Pertinent Submissions
[15]
The
jurisprudence has laid down three different tests for determining whether a
citizenship applicant has met the residency requirement in paragraph 5(1)(c)
(Applicant’s Memorandum of Fact and Law at para. 14).
[16]
The
“central existence” test was developed in Re Papadogiorgakis, [1978] 2
F.C. 208 (T.D.) and states that, in close cases, physical presence in Canada is not
necessary to meet the requirement in paragraph 5.(1)(c), but that the
applicant must centralize his or her mode of living in Canada (Applicant’s
Memorandum of Fact and Law at para. 14).
[17]
The
“middle ground” test was developed in Re Koo (1992), 59 F.T.R. 27,
[2003] 1 F.C. 286 (T.D.), and takes into account both physical presence in
Canada as well as whether the applicant has centralized his or her mode of
living (Applicant’s Memorandum of Fact and Law at para. 15).
[18]
The
“physical presence” test was developed in Pourghasemi, Re (1993), 62
F.T.R. 122, 39 A.C.W.S. (3d) 251 (T.D.), and requires the applicant to be
physically present in Canada for three of the four years before the
filing of the citizenship application (Applicant’s Memorandum of Fact and Law
at para. 16).
[19]
The
case of Canada (Minister of Citizenship and Immigration) v. Mindich
(1999), 170 F.T.R. 148, 89 A.C.W.S. (3d) 1125 (T.D.), at paragraph 9, puts
forward the proposition that it is open to the citizenship judge to select any
of the three tests and it is the reviewing court’s function to ensure that the
test was properly applied (Applicant’s Memorandum of Fact and Law at para. 18).
[20]
Section
14.(2) of the Citizenship Act was violated by failing to provide
sufficient reasons for the decision. A reviewable error occurred as it is
impossible for a reviewing court to determine which test was applied to the
facts (Applicant’s Memorandum of Fact and Law at para. 19).
[21]
The
Citizenship Judge failed to provide any reasons to support his decision and
there is no evidence in the tribunal record to show that Ms. Zegarac had
established residence in Canada (Applicant’s Memorandum of Fact and Law at
para. 22).
[22]
In order for
the Citizenship Judge to have considered the days absent from Canada between
April 4, 2002 and April 4, 2006 as days of residence, there must be some
evidence that Ms. Zegarac had centralized her mode of existence with Canada. No such
evidence exists and therefore, the Citizenship Judge’s decision is unreasonable
(Applicant’s Memorandum of Fact and Law at para. 24).
[23]
The
Act requires citizenship judges to provide reasons for their decisions and a
judge commits an error of law when he or she fails to provide adequate reasons
to support a decision (Canada (Minister of Citizenship and Immigration) v.
Megally, 2008 FC 743, 169 A.C.W.S. (3d) 153 at paras. 18-21).
[24]
The
Citizenship Judge failed to provide adequate reasons as it is not possible to
verify the basis upon which Ms. Zegarac was found to have met the requirements
of Section 5 of the Citizenship Act.
IX. Analysis
[25]
The
decision states that Ms. Zegarac had 48 days of absence from Canada during the
relevant four year period and a total of 1412 days of physical presence in Canada (Certified TR
at p. 1). Although it is open for the Citizenship Judge to choose from the
three tests for residency, it is vitally important that he or she explain which
test was chosen so that a court can determine whether the law was properly
applied.
[26]
In
the case of Mahmoud, above, Justice Hughes held that the reasons given
by the citizenship judge were inadequate because it was unclear what test was
used to determine the number of days the applicant had been in Canada. The Citizenship Judge’s
reasons in Mahmoud suggest that the “central existence” test had been
applied, but the court found the reasons inadequate because it was unclear
whether this test was actually used (Mahmoud at para. 20).
[27]
The
reasons in Mahmoud
filled up the entirety of the space on the judgment form that is devoted to
reasons, whereas the reasons given in this case consist of five words: “verify”,
“PPY”, “OK”, “LOK”, “& absence” (Applicant’s Record at Tab C). The counsel
for the Applicant, when asked in open Court, had no idea what the acronyms
meant nor to what they referred. It is the Court’s conclusion that these
reasons are inadequate because it is impossible to determine which test was
applied.
[28]
In
addition to this, the tribunal record contains evidence which shows Ms. Zegarac
lived in Calgary until her husband lost his job in June 2001, at which time she
returned to Serbia with her
children (Certified TR at p. 42). These notes also show Ms. Zegarac returned to
Canada in June 2005
(Certified TR at pp. 41, 47). A citizenship judge must make a decision based on
all of the evidence and it is impossible to tell from the reasons whether this
evidence was considered.
X. Conclusion
[29]
It
is the Court’s conclusion that the decision of the Citizenship Judge is to be
quashed and the matter sent back for re-determination by a different Citizenship
Judge who must have regard to all of the evidence and give sufficient reasons
for a determination which ensures that the law has been properly applied.
[30]
Citizenship
and Immigration Canada receives more than 180,000 citizenship applications
annually; therefore, it is understandable when the twenty-five citizenship
judges in Canada give
succinct reasons in support of their decisions. That being said, succinctness
still requires sufficient explanation to allow for an understanding of how a
decision is reached. Although key words may represent signposts that allow the
decision-maker to recognize a frame of reference, that frame of reference does
not necessarily enable the recipient of the decision to understand the thought
process and jurisprudence which underlie the conclusion.
[31]
More
than mere precision is required in order for the law to be understood and for
jurisprudence of a specialized tribunal to be made clear; it demands (pursuant
to Section 14.(2) of the Act and the associated case law) the drafting of transparent
and accessible decisions. When there is no possibility by which to
verify the basis upon which Ms. Zegarac was found to have met the requirements
of Section 5 of the Citizenship Act, the decision must be overturned.
JUDGMENT
THIS COURT ORDERS that the appeal be granted; thereby, the decision be quashed and
the matter returned for re-determination by a different Citizenship Judge.
“Michel M.J. Shore”
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