Date: 20071217
Docket: T-897-07
Citation: 2007 FC 1328
Vancouver, British Columbia, December
17, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
BENOLOL
JAIME SERFATY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an appeal by Benolol Jaime Serfaty from a decision of the Citizenship
Court brought under subsection 14(5) of the Citizenship Act,
R.S.C. 1985, c. C-29 (Act).
[2]
The substantive issue raised on this appeal concerns, once
again, the correctness of the legal test for determining residency under
s. 5(1)(c) of the Act. It is common ground that Mr. Serfaty did not meet
the strict numerical standard of residency and was found by the Citizenship
Court to have fallen 385 days short of the minimum requirement
of 1095 days within Canada. Mr. Serfaty contends that there was
ample evidence to support his de facto Canadian residency and he argues
that the Court erred by failing to apply one of the more liberal approaches
to that determination: see, for example, Re Koo, [1993] 1 F.C. 286,
59 F.T.R. 27 (T.D.).
[3]
It was also argued that, because the Department advised Mr.
Serfaty to submit evidence to establish his so-called centralized mode of
living in Canada, the Court was bound to consider that
evidence notwithstanding the failure to be physically present in Canada for
1095 days during the preceding four years.
[4]
As this is a statutory appeal the standard of review to be
applied to issues of law is correctness.
[5]
On the basis of the admittedly unsatisfactory state of the
jurisprudence on this issue, I am not able to accept Mr. Serfaty's
argument. If there is one point that most of the authorities in this Court
agree upon it is that the Citizenship Court is entitled to apply any one of
three accepted tests for residency: see Lam v. Canada (Minister of
Citizenship and Immigration), (1999) 164 F.T.R. 177 at para. 14 and So
v. Canada (Minister of Citizenship and
Immigration), (2001) FCT 733, 107 A.C.W.S. (3d) 736 at para. 29.
[6]
Here, the Citizenship Court
adopted the strict numerical approach in accordance with the authority of Re
Pourghasemi, (1993) 62 F.T.R. 122. It was not an error to take that
approach and there is nothing in the decision to suggest any confusion about
the test being applied.
[7]
I do not agree that, by the Department's invitation to Mr.
Serfaty to submit other evidence of his de facto ties to Canada, the
Citizenship Court was thereby bound to apply one of the more flexible tests
for residency. The approach taken by the Department was simply a recognition
that such evidence may be considered by the Citizenship
Court if it chooses to apply one of the more liberal tests for
establishing residency. I agree with counsel for the Respondent that the Citizenship
Court cannot be fettered by positions adopted by the Department;
but, in any event, the Department's position did not purport to stipulate a
test for residency and Mr. Serfaty was not disadvantaged by anything Mr.
Serfaty was told. He submitted a substantial body of evidence to establish his de
facto ties to Canada but the Citizenship Court,
acting within its authority, chose to disregard it.
[8]
The second issue raised on this appeal concerns the
following passage from the Citizenship Court
decision:
I am recommending to the Department of Citizenship &
Immigration that they inform the Canadian Border Security Agency and
Immigration officials that you provided incomplete and misleading information
regarding your residence in Canada. Be aware that when you cross the border from outside of Canada you will be
identified as a person who has attempted to mislead Citizenship &
Immigration Canada.
[9]
Mr. Serfaty contends that the above recommendation exceeds
the jurisdiction of the Citizenship Court. I agree. It would not be
appropriate or lawful for the Department to act upon this recommendation.
[10]
There is nothing wrong with a Citizenship Judge expressing
in a decision unfavorable views on an applicant's credibility or in making
critical remarks about any other issue. There is also nothing wrong with the
Department choosing to act upon such observations if it chooses to do so. The
problem with the passage impugned in this case is that the Citizenship Judge
actively purports to offer an administrative recommendation to the Department
coupled with an unqualified assertion that Mr. Serfaty will be singled out at
the border.
[11]
The limits of the Citizenship Court's
authority to officially communicate with the Minister in connection with its
determination of a citizenship application are fixed by ss. 14(2) and ss. 15(1)
of the Act. Those provisions limit the Court's reporting function to the
provision of the reasons for its determination or to recommending to the
Minister that certain statutory requirements be waived. It is not the role of
the Citizenship Court to give, within its
decisions, administrative advice to the Department about how it should treat a
citizenship applicant for the purposes of maintaining border security. The Citizenship
Court must protect its independence. It should scrupulously
avoid any appearance that it has some official influence, beyond its statutory
mandate, over the work of immigration or border officials, just as it must be
free of any perceived influence operating in the opposite direction.
[12]
I accept that the remarks of the Citizenship
Court are not binding on the Department. However, those remarks
may not be so benignly perceived by others both because they carry an
imprimatur of authority and because, once put into action, the context may be
lost. I would add that the remarks and the recommendation made here are
unwarranted in the absence of a thorough analysis of the evidence. Mr. Serfaty
offered a mitigating explanation for the errors made in his citizenship
application which, if accepted, would not reasonably support the position taken
by the Citizenship Judge. At a minimum, Mr. Serfaty was entitled to have that
explanation thoroughly considered in the decision before being subjected to the
kind of future scrutiny proposed by the Citizenship Court: see Chiu v.
Canada (The Minister of Citizenship and Immigration), 2005 FC 1036, 141
A.C.W.S. (3d) 13 at para. 3.
[13]
For the reasons given, I would direct that the Respondent
disregard the recommendation made by the Citizenship Court with
respect to its future dealings with Mr. Serfaty and that the Respondent inform
any other interested third parties, such as the Canadian Border Security Agency,
of this direction.
[14]
Subject to the above-noted direction, this application is
dismissed without costs to either party.
JUDGMENT
THIS COURT
ADJUDGES that this application is
dismissed without costs to either party.
"R.L.
Barnes"
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