Docket: T-1261-14
Citation:
2014 FC 1250
Ottawa, Ontario, December 22, 2014
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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RONY HUSSNI EL CHMOURY
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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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JUDGMENT AND REASONS
[1]
The applicant appeals the decision of a
Citizenship Judge, which did not approve his application for citizenship. It
is submitted that the Citizenship Judge erred by assessing the evidence under
the qualitative residency test and then refusing the application under the
quantitative residency test.
[2]
The quantitative residency test set out in Re
Pourghasemi, [1993] FCJ 232 [Pourghasemi] requires that an applicant
have 1095 days of actual physical residency in Canada in the relevant four-year
period. The qualitative tests are found in two decisions. Re
Papadogiorgakis, [1978] 2 FC 208, held that what is required is evidence of
a centralized mode of living established in Canada. Re Koo, [1993] 1 FC
286 [Koo], held that a centralized mode of existence or where the
applicant “regularly, normally or customarily lives” can be determined by
considering a number of qualitative factors including (1) whether the
individual was physically present in Canada for a long period prior to recent
absences which occurred immediately before the application for citizenship; (2)
whether the applicant's immediate family and dependents (and extended family)
are resident in Canada; (3) whether the pattern of physical presence in Canada
indicates a returning home or merely visiting the country; (4) whether the
extent of the physical absences results in an applicant being only a few days
short of the 1095 days or are extensive; (5) whether the physical absences are
caused by a temporary situation such as employment as a missionary abroad,
following a course of study abroad as a student, accepting temporary employment
abroad, accompanying a spouse who has accepted temporary employment abroad; and
(6) whether the quality of the connection with Canada is more substantial than
that which exists with any other country.
[3]
Mr. El Chmoury entered Canada to study in June 2001. He was granted permanent residency on November 6, 2008, and
he filed an application for citizenship on February 4, 2011. In his
application he stated that he had 1082 days of residency during the relevant
four-year period. Therefore, he was 13 days short of the required days of
physical residence.
[4]
In March 2012, Mr. El Chmoury received a
Residence Questionnaire from Citizenship and Immigration Canada asking him to
provide further information and documentation on residency. He had a hearing
before the Citizenship Judge on February 11, 2014. At the conclusion of the
hearing the judge requested that he provide further documentation.
[5]
In his decision letter dated March 25, 2014, the
Citizenship Judge refused the application citing the residency requirement of
1095 days from Re Pourghasemi. He did, however, engage in some analysis
of the oral and documentary evidence submitted by Mr. El Chmoury.
[6]
It is accepted that a Citizenship Judge may
apply any of the three established residency tests, as long as the judge
applies the criteria of the chosen approach. Mr. El Chmoury submits that it
has held that it is a reversible error if the Citizenship Judge conducts an
assessment under one test but then renders the decision under a different test:
Chueng v. Canada (Minister of Citizenship and Immigration), 2012 FC 348
[Cheung], Chowdhury v. Canada (Minister of Citizenship and
Immigration), 2009 FC 709 [Chowdhury], and Rousse v. Canada
(Minister of Citizenship and Immigration), 2012 FC 721 [Rousse].
[7]
In Cheung, Justice Phelan observed at para 15
that “it is not possible to discern which test was used
to deny the application for citizenship” and on that basis allowed the
appeal. Similarly, Justice Teitelbaum allowed the appeal in Chowdhury,
observing that the judge did not clearly state the approach he was taking.
Neither decision can be said to be similar to that under appeal because here
the Citizenship Judge expressly stated that he was using the Pourghasemi
test.
[8]
In Rousse the Citizenship Judge appeared to go
through the Koo factors, before rejecting the application on the Pourghasemi
test. Justice Scott held that the Citizenship Judge erred in so doing:
[30] In short, the judge conducted a
thorough analysis, applying the Koo criteria. However, and therein lies
the rub, she rejected the application on the basis of Pourghasemi, that
is, based on the physical presence criterion alone.
[31] This confusion about the approach and
the applicable criteria cannot be accepted, since it constitutes an error of
law. The decisions of this Court rightly acknowledge, given the law as it now
stands, that it is up to the citizenship judge to select the applicable test. However,
once a judge makes that selection, they must apply the test selected
consistently. The applicant must be able to understand the decision and
the reasons and basis for that decision.
[32] In this case, the judge failed to
make a determination, after completing her analysis applying the Koo
criteria, as to whether Mr. Rousse had or had not established residence.
She concluded:
[TRANSLATION]
Following the hearing on December 14,
2010, and after doing a careful review of the documentation submitted, I again
find that Robert ROUSSE does not meet the requirement in section 5(1)(c)
of the Citizenship Act in that he was not in Canada for long enough
during the period considered.
I refer to the criteria stated by Muldoon J.
in Pourghasemi, (RE): [1993] F.C.J. No. 232, which are clear, on this point.
(See notes of Judge Renée Giroux in the record.)
[33] In conclusion, the Court allows the
appeal because the judge erred by conducting an analysis under the Koo
criteria and reaching a conclusion on the basis of the physical presence
criterion in Pourghasemi. [emphasis added]
[9]
In my view, the facts in Rousse
are significantly different than those here. In Rousse, the Citizenship
Judge was clearly conducting a Koo analysis but reached no decision on
that basis. That is not so here. Here the Citizenship Judge, in examining the
evidence, did so only with an eye to the physical presence of Mr. El Chmoury in Canada. That analysis led the Citizenship Judge to a conclusion only
regarding physical presence: “Unfortunately, your oral
and documentary evidence gives rise to DOUBTS that you were indeed residing
here for the period claimed [emphasis in original].”
[10]
Mr. El Chmoury submits that in undertaking this analysis and requesting further
documents, the Citizenship Judge had embarked on a qualitative analysis and
could not then reject the application on the basis of the quantitative
analysis. That is not my view of the decision or the record.
[11]
Every Citizenship Judge knows that he or she has
discretion to apply any one of three tests that have been developed. Each also
knows that an applicant may be granted citizenship even when he or she has less
than the required days of physical presence, if one of the qualitative tests is
used. As such, in my view, a Citizenship Judge cannot be faulted for making
inquiries of an applicant and reviewing the oral and documentary evidence in
order to arrive at a decision as to which of the three tests he or she will use
in any particular case. It is possible that had the Citizenship Judge here
been satisfied that Mr. El Chmoury had in fact been resident in Canada for the 1082 days of physical presence claimed, that the judge may have considered
whether to use a qualitative test of residence in assessing his application.
There is no error of law in so doing. It is a reasonable and proper inquiry
upon which to base the discretionary decision as to the test to be applied.
[12]
In this case, the Citizenship Judge examined the
evidence and concluded that it did not even support Mr. El Chmoury’s claim to
have been physically present in Canada for 1082 days. Unlike the authorities
relied on by Mr. El Chmoury, there was no Koo analysis; rather, there
was an analysis of the oral and documentary evidence as evidence of physical
presence. I do not accept the submission that in the face of an application
having less than 1095 days presence such an analysis was irrelevant unless the
Citizenship Judge was undertaking a Koo analysis of the application. It
is and was a relevant analysis going to whether to exercise discretion and use
a qualitative test.
[13]
For these reasons the appeal is dismissed, with
costs fixed at $250.00.
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