Date: 20110125
Docket: T-1048-10
Citation: 2011 FC 85
Ottawa, Ontario, January 25,
2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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GHOLAM GHAEDI
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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
[1]
This
is an appeal by Gholam Ghaedi brought under ss 14(5) of the Citizenship Act,
RSC 1985, c C-29 [Act ] from a decision of the Citizenship Court by which his
application for citizenship was refused.
Background
[2]
Mr. Ghaedi
came to Canada in 2001 along
with his wife and five children. At that time, the family was granted
permanent resident status. The Ghaedi children have all since acquired their
Canadian citizenship.
[3]
Mr. Ghaedi
applied for citizenship on November 10, 2005. In his application he claimed to
have been absent from Canada for a total of 217 days during the preceding
four years. All of Mr. Ghaedi’s declared absences related to trips taken
to Dubai and Iran. Because
this declaration was inconsistent with information recorded in
Mr. Ghaedi’s passport, Mr. Ghaedi was ordered to complete a residency
questionnaire and to attend for a citizenship interview. It was at this point
that Mr. Ghaedi declared absences from Canada between
September 2001 and November 2005 of 701 days, giving rise to a significant
shortfall in meeting the minimum statutory threshold for residency of 1095
days.
The
Decision Under Review
[4]
The
Citizenship
Court
rejected Mr. Ghaedi’s application on the basis of the strict physical
presence test of residency recognized by this Court in Re Pourghasemi, 62
FTR122, (1993) 19 Imm LR (2d) 259 (FCTD). No consideration was given to the
application of the more flexible standard of so-called functional residency
recognized in cases like Re Koo, [1993] 1 FC 286, 59 FTR 27. Mr. Ghaedi
argues that, in keeping with several recent decisions of this Court, this
approach to residency constitutes a reviewable error of law.
Issues
[5]
Did
the Citizenship
Court
err by determining Mr. Ghaedi’s residency on the sole basis of the
Applicant’s physical presence in Canada during the four years
preceding his application?
Analysis
[6]
The
issue before the Court is one of law and must be reviewed on the standard of
correctness: see Canada (Citizenship and
Immigration) v Takla, 2009 FC 1120, 359 FTR 248.
[7]
This
is a situation which requires the Court to revisit the issue of residency under
ss 5(1)(c) of the Act and specifically whether the period of required residency
can be determined solely on the basis of an individual’s physical presence in
Canada for a minimum period of 1095 days.
[8]
At
issue is whether this Court should continue to follow the decision in Lam v Canada (Minister of
Citizenship and Immigration),164 FTR. 177, [1999] FCJ No 410 or adopt
the more recent views expressed by Justice Robert Mainville in Canada (Minister of
Citizenship and Immigration) v Takla, 2009 FC 1120, 359 FTR
248.
[9]
In
Lam, above, Chief Justice Allan Lutfy examined the previous 20 years of
conflicting Federal Court decisions that had recognized three different
residency tests under the Act, namely those found in Re Koo, above; Re
Pourghasemi, above; and Re Papadogiorgakis, [1978] 2 FC 208, 88 DLR
(3d) 243 (FCTD). He observed that in the absence of a right of appeal to the
Federal Court of Appeal, there was no judicial mechanism by which the
jurisprudential disagreement as to the proper test could be readily resolved.
He expressed the hope, however, that the impasse would be solved by then
pending legislative amendments. He concluded that, notwithstanding that the
issue of residency was one “close to the correctness end of the spectrum”,
deference was required when the decision under review clearly demonstrated the
proper application of the facts to any of the three previously recognized tests
for residency. It is also apparent from his reasons that he was influenced in
part by the expectation that legislative changes would be forthcoming.
[10]
Unfortunately
the legislative amendments anticipated in Lam, above, never came to
fruition. In the result, the decision has become well entrenched in this
Court’s jurisprudence and the Citizenship Court has quite properly
followed it. The inevitable consequence of not having a single test for
residency is, however, that similar citizenship cases can be decided
differently based upon which one of the recognized legal tests for residency is
applied. Although the Lam approach may have largely eliminated the
continuation of a residency debate in this Court, it has not led to greater
certainty in the determination of residency at the Citizenship Court.
[11]
In
Canada (Minister of
Citizenship and Immigration) v Nandre, 2003 FCT 650, [2003]
FCJ No 841 Justice James O’Reilly considered the problem. He held that in keeping
with the preponderance of jurisprudence, where an applicant for citizenship has
failed to satisfy the statutory threshold of 1095 days of physical presence in Canada, a single
unifying qualitative standard for residency was required. He concluded his
analysis with the following admonition:
21 Accordingly, I find that the
qualitative test set out in Papadogiorgakis and elaborated upon in Koo
should be applied where an applicant has not met the physical test. I should
add that I do not regard the qualitative test as one that is easy to meet. A
person's connection to Canada would have to be quite strong in order for his or
her absences to be considered periods of continuous residency in Canada.
[12]
In
Takla, above, Justice Mainville attempted again to break through the
jurisprudential impasse with a plea for a uniform and judicially coherent
approach. He observed that of the three tests for residency the qualitative
approach in Re Koo, above, was “by far, the dominant test” and that it
should, therefore, be the only recognized standard in such cases.
[13]
The
Takla decision has since been cited with approval in Canada
(Citizenship and Immigration) v Elzubair, 2010 FC 298, in Canada
(Citizenship and Immigration) v Salim, 2010 FC 975 and noted as a “prevalent
trend” by Justice O’Reilly when he revisited the issue in Dedaj v Canada
(Citizenship and Immigration), 2010 FC 777: also see Canada (Minister
of Citizenship and Immigration) v Alonso Cobos, 2010 FC 903; Canada
(Citizenship and Immigration) v Abou-Zahra, 2010 FC 1073; and Khan v
Canada (Minister of Citizenship et Immigration), 2009 FC 1178.
[14]
Although
the Respondent has cited a few recent Federal Court decisions where the ratio
in Lam, above, has been applied, they appear to have been rendered
without consideration of Nandre, above, or Takla either because
those authorities were not cited to the Court or were unnecessary to the final
dispositions.
[15]
Counsel
for the Respondent points out that with the exception of Dedaj, above,
the outcome of Takla and the cases following it turned on the
Citizenship Judge’s proper application of the test for residency established by
Re Koo, above. All of the discussions about the need for a single
unified test for residency were accordingly obiter. Notwithstanding that interesting
observation, I agree with counsel for Mr. Ghaedi that the views expressed
by Justice O’Reilly and Justice Mainville are compelling and justify departing
from the view expressed both in Lam, above, and the cases which have
applied it, including several of my own decisions. In my view, the benefits of
harmonizing the approach to residency outweigh the concerns expressed in Lam,
above, about deferring to the judgment of the Citizenship Court. Deference
is not a juridical value that outweighs the need for adjudicative consistency
and the predictability of judicial outcomes.
[16]
Counsel
for Mr. Ghaedi argued that I am bound to follow Takla , above, and
the more recent decisions of my judicial colleagues. I do not agree that this
is an issue for which judicial comity applies. Notwithstanding the views of
any particular judge, there will continue to be two lines of divergent
authority on this issue and others may be quite properly disposed to follow Lam,
above. Needless to say, if this Court does not over time adopt a common view
on this issue, it is unlikely that the Citizenship Court will do so and the
only available resolution in that event will be legislative.
Conclusion
[17]
For
the reasons expressed above, this application is allowed with the matter to be
remitted to a different Judge of the Citizenship Court for a redetermination
on the merits and in accordance with these reasons. Given the circumstances of
this case, I am not disposed to award costs to Mr. Ghaedi.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application is allowed with the matter to be
remitted to a different Judge of the Citizenship Court for a redetermination
on the merits and in accordance with these reasons.
“ R. L. Barnes ”
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