Docket:
T-1824-13
Citation:
2014 FC 394
Ottawa, Ontario, April 28,
2014
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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ERIN CHRISTINE DONOHUE
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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 of the decision of Floyd C.
Babcock, a Citizenship Judge with the Citizenship Commission, Immigration
Canada [the Judge]. The Judge denied the Applicant’s application for Canadian
citizenship by concluding that she did not meet the residency requirement as
defined in 5(1)(c) of the Citizenship Act, RSC, 1985, c C-29 [the Act].
As a preliminary issue, this matter should have proceeded as an appeal pursuant
to subsection 14(5) of the Act. I hereby convert the proceeding into an appeal.
I.
Issues
[2]
The issues in the present application are as
follows:
A.
Did the Judge err by applying the physical
presence test?
B.
Was the Judge’s application of the facts to the
physical presence test reasonable?
C.
Did the Judge breach the duty of procedural
fairness?
II.
Background
[3]
The Applicant is a citizen of the United States. In 2001, she entered Canada, and became a permanent resident on January 22,
2008. On February 28, 2010, the Applicant applied for Canadian citizenship. She
submitted a Residence Questionnaire on April 14, 2011.
[4]
On October 7, 2013, the Applicant appeared with
counsel for a one-hour hearing before the Judge.
[5]
The Judge evaluated whether the Applicant met
the residency requirement in 5(1)(c) of the Act in accordance with the test
from (Re) Pourghasemi, [1993] FCJ No 232 (TD) [Pourghasemi],
which relies in a strict count of days. He determined that the Applicant failed
to meet the requirement from Pourghasemi that she be physically present
in Canada for at least 1095 days out of the four years immediately preceding
her application for citizenship.
[6]
In coming to this conclusion, the Judge noted
that the Applicant declared 156 worth days of absences from Canada in her citizenship application, but 205 on her Residence Questionnaire. Likewise, he
found that the Applicant was physically present in Canada for 958 days
according to her citizenship application, but 909 days according to her
Residence Questionnaire.
[7]
The Judge also concluded that he was unable to
calculate the number of days of the Applicant’s presence in Canada because her History of Entries to Canada [ICES Report] conflicts with information provided by
the Applicant. In particular, he noted that the Applicant’s ICES Report lists
49 exits from and entries into Canada, while her Residence Questionnaire lists
44. Further, only 19 of those listed on the ICES Report were verified against
the Applicant’s Residence Questionnaire.
[8]
The Judge noted that the Applicant’s history
with the Ontario Ministry of Health and other documents submitted are passive
indicators of residence in Canada.
[9]
The Judge found that the Applicant had the
burden to prove her physical presence in Canada via consistent and reliable
evidence, but did not do so (Atwani v Canada (Minister of Citizenship and
Immigration), 2011 FC 1353 at paras 12, 18).
[10]
The relevant statutory provisions under
consideration are attached as Annex A.
III.
Standard of Review
[11]
The first issue involves a question that has
been the subject of much debate and uncertainty in the jurisprudence.
[12]
In Gavriluta v Canada (Minister of
Citizenship and Immigration), 2013 FC 705 at para 27, Justice Elizabeth Heneghan stated that the appropriate standard of review is reasonableness. Her
rationale was based on Lam v Canada (Minister of Citizenship and
Immigration), [1999] FCJ No 410 at para 14 [Lam], where Chief
Justice Lutfy, as he then was, stated that a citizenship judge has discretion
to choose one of three legal tests to assess the residency requirement. Given
this discretion, a citizenship judge’s decision to select one of these tests
should be reviewed on the standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, at para 53 [Dunsmuir]).
[13]
However, this issue involves the selection of an
appropriate legal test to determine whether the requirements of 5(1)(c) of the
Act are met. As this is a question of law of central importance to the legal
system, I believe that the appropriate standard of review is correctness (Dunsmuir,
above, at para 60), as been held in several cases (Ghosh v Canada (Minister
of Citizenship and Immigration), 2013 FC 282 at para 18; Martinez-Caro v
Canada (Minister of Citizenship and Immigration), 2011 FC 460 at para 52 [Martinez-Caro];
El Ocla v Canada (Minister of Citizenship and Immigration), 2011 FC 533
at paras 17-18).
[14]
The second issue, as a question of mixed fact
and law, is reviewable on the standard of reasonableness. The third question is
one of procedural fairness and is reviewable on the standard of correctness (Canada (Minister of Citizenship and Immigration) v Takla, 2009 FC 1120).
IV.
Analysis
A.
Did the Judge err by Applying the Physical
Presence test?
[15]
The Applicant argues that the Judge ought to
have conducted a qualitative assessment of the evidence submitted which showed
the quality of her ties to Canada. The Applicant suggests that such an
assessment would allow her to meet the residency requirement, despite not
satisfying the physical presence test.
[16]
The Applicant submitted over 300 pages of
documents with her Residence Questionnaire to demonstrate her attachment to Canada. Other than a blanket statement that he considered the evidence, there is no
indication that the Judge undertook a qualitative assessment.
[17]
The Applicant notes that the documents submitted
show a detailed and continuous history of employment, residence, taxes, and
auto and health insurance in Canada. Furthermore, they show evidence of her
establishment via documentation relating to her husband, child and various
community initiatives with which she is involved. The Respondent notes that
this constitutes overwhelming evidence that she would meet the residency
requirement if a qualitative assessment were conducted.
[18]
The selection of the appropriate test to
establish the residency requirement in 5(1)(c) of the Act is the subject of
much debate, as three distinct tests have emerged from the jurisprudence of the
Federal Court.
[19]
The tests originate from Pourghasemi, Re
Papadogiorgakis [1978] 2 FC 208 [Papadogiorgakis], and Koo (Re),
[1993] 1 FC 286 [Koo]. The Pourghasemi test is the most
restrictive: it requires a quantitative assessment of the number of days the
applicant has physically spent in Canada in order to determine whether they
have met the residency requirement in 5(1)(c) of the Act. In contrast, the
tests from Papadogiorgakis and Koo make an additional qualitative
assessment. They ask whether the applicant, while not meeting the physical
presence requirement as articulated in Pourghasemi, can nonetheless meet
the residency requirement based on the quality of their attachment to Canada. The tests from Papadogiorgakis (“centralized mode of living”) and Koo
(“substantial connection”) both take different approaches to undertaking this
qualitative assessment, but fundamentally ask the same question.
[20]
The availability of the differing tests has
endured because section 16 of the Act limits citizenship appeals to the Federal
Court. As no appeal lies with the Federal Court of Appeal, there has been no
unifying authority to guide trial decisions on this issue. Owing to this and
the absence of legislated guidance by Parliament, various decisions by the
Federal Court have taken different roads in determining which test or tests
should be used by a citizenship judge in assessing the residency requirement in
5(1)(c) of the Act.
[21]
The first approach is the one advanced by the
Applicant on the basis of the precedent in Lam, above: a citizenship
judge may apply any of the three tests described above.
[22]
A second approach was first articulated in Chen
v Canada (Minister of Citizenship and Immigration), 2001 FCT 1229, and
adopted in the Martinez-Caro decision. In Martinez-Caro, Justice
Rennie concluded that principles of statutory interpretation dictate that the
residency requirement in 5(1)(c) of the Act must be assessed using the strict
physical presence test from Pourghasemi.
[23]
The third is a hybrid approach. Justice James O’Reilly
in Canada (Minister of Citizenship and Immigration) v Nandre, 2003 FCT
650 at para 12, held that if the physical presence test from Pourghasemi
is not met, one of the qualitative tests should be considered if an applicant
has submitted evidence that would allow such an assessment. Justice O’Reilly
later clarified that the Koo test should be the qualitative test used in
this hybrid approach (Dedaj v Canada (Minister of Citizenship and
Immigration), 2010 FC 777 at para 7).
[24]
I find the reasoning by Justice Rennie, at paras
29-34 of Martinez-Caro, compelling:
29 On a plain and ordinary reading of
the statute, as a whole, Parliament has expressly defined the degree or extent
of latitude or flexibility to be granted to putative citizens. Residence speaks
of presence, not absence. In my view, the qualitative tests do not adequately
take into account either the literal meaning of the section nor the requirement
that the statute be read as a whole. The qualitative approach also leaves
unanswered how or under what principle of statutory interpretation the Court
imports into otherwise precise language greater absences or periods of
non-residency greater than those already expressly defined by Parliament. There
is, in sum, no principle of interpretation that would support the extension of
periods of absences beyond the one year expressly provided by Parliament.
Absent an issue of constitutionality the language of Parliament prevails and
which a court, having reached a conclusion as to its interpretation, must
apply.
30 In construing the statute, the
fundamental question, therefore, is, why did Parliament prescribe at least
three years of residency in the four years preceding the application? The use
of the words at least, in the Act indicates that 1,095 days is the minimum
number of days a given citizenship applicant must accumulate. Parliament
provided to would-be citizens the flexibility to accumulate 1,095 days over the
course of four years, or 1,460 days. Accumulation by its ordinary meaning,
imports a quantitative analysis. A test of accumulation is, quite separate and
distinct from tests of citizenship based on intention or where one centers ones
life. Intention cannot be accumulated as the statute dictates nor does the
concept of "centralizing ones mode of life" fit well with the
quantitative elements of the words at least.
31 Subsection 5 (1.1) has seldom been
addressed in considering the definition of residency. It provides:
5 (1.1) Any day during which an applicant
for citizenship resided with the applicant's spouse who at the time was a
Canadian citizen and was employed outside of Canada in or with the Canadian
armed forces or the federal public administration or the public service of a
province, otherwise than as a locally engaged person, shall be treated as
equivalent to one day of residence in Canada for the purposes of paragraph
(1)(c) and subsection 11(1).
* * *
5 (1.1) Est assimilé à un jour de
résidence au Canada pour l'application de l'alinéa (1)c) et du paragraphe 11(1)
tout jour pendant lequel l'auteur d'une demande de citoyenneté a résidé avec
son époux ou conjoint de fait alors que celui-ci était citoyen et était, sans
avoir été engagé sur place, au service, à l'étranger, des forces armées
canadiennes ou de l'administration publique fédérale ou de celle d'une
province.
The plain reading of subsection 5 (1.1)
reinforces the conclusion arising from a reading of the statute as a whole,
namely that periods spent outside of Canada, by non-citizens, would not, save
in the limited circumstances described, count. Parliament thus expressly
contemplated the period of time during which putative citizens could be out of
the country and in what circumstances. In my opinion, based on the plain
reading of the text the requirement of three-year residence within a four-year
period has been expressly designed to allow for one year's physical absence
during the four-year period.
32 Again, returning to the first principle
of interpretation, residency signifies presence, not absence, in both official
languages. The French version is equally authoritative as the English, and
points to the same conclusion as to Parliament's intent.
33 This interpretation is not new. It has a
long antecedence which can be traced back to the decision of Pratte J. in
Blaha, Nadon J. in Chen, and Muldoon J. in Re Pourghasemi. It finds its most
recent expression in the decision of this Court in Sarvarian v. Canada (Minister of Citizenship and Immigration), 2010 FC 1117, of Justice Mosley in Hao
and Justice Gauthier in Alinaghizadeh.
34 To conclude on the question of statutory
interpretation, I note that Parliament conferred on the Citizenship Court judge
the discretion to make recommendations to the Minister of Citizenship that
citizenship be granted in cases of exceptional circumstances. The discretion to
relieve from any undue hardship or unfairness, such as when an individual was
kept out of Canada for reasons beyond their control were thus contemplated and
addressed in subsection 5(4), and to read the same discretion into the very
definition of residency, is to import, indirectly, that which Parliament has
already addressed directly in subsection 5(4). It also, in effect, renders that
discretionary power nugatory. Why else would it be necessary to make a
recommendation to the Minister if, by the selection of a more lenient standard,
citizenship can be conferred?
[25]
While I have sympathy for the frustration of the
Applicant in the inconsistent approaches taken both at the Citizenship
Commission level and in this Court, I find that based on the plain and ordinary
reading of the statute, the strict physical presence test is the principled
approach to take.
B.
Was the Judge’s Application of the facts to the
Physical Presence test Reasonable?
[26]
The Applicant argues that the Judge erred in
finding that there was an inconsistency between the number of days that the
Applicant stated that she was absent from Canada in her citizenship application
(156) versus her Residence Questionnaire (205). Likewise, the Applicant takes
issue with the Judge’s finding that the number of days she was physically
present in Canada was inconsistent between these two sources.
[27]
The Applicant argues that this distinction is
explainable, because the method of calculating days for purposes of 5(1)(c) of
the Act differs depending on whether the days accumulated before or after the
Applicant became a permanent resident while residing in Canada, as per 5(1)(i)
and 5(1)(ii) of the Act. The Applicant notes that she listed 205 absences in total
on her citizenship application, but 98 were in the period before she became a
permanent resident. As per 5(1)(i), each day absent from Canada which occurred prior to her becoming a permanent residence is equal to one half-day for the
purposes of fulfilling the residency requirement in 5(1)(c). Accordingly, these
98 days become 49 days for the purpose of the Act. Adding these to the
remaining 107 days of absence, which occurred after she received permanent
residency, the total is 156 days. This is consistent with the absences stated
on her Residence Questionnaire.
[28]
The Applicant also states that she noted 207
absences on her questionnaire, not 205 as the Judge suggests, as she remembered
subsequent to filing her application that she was absent from Canada for an additional two days before she became a permanent resident. She acknowledges
that, for the purposes of the Act, there is a discrepancy of one day between
her citizenship application and her Residence Questionnaire.
[29]
I agree with the Applicant that the discrepancy
between the dates cited by the Judge is explainable. However, in light of the
fact that neither the absences cited on the Applicant’s citizenship application
or her Residence Questionnaire add up to 1095 days of physical presence in Canada, this explanation is irrelevant to the Citizenship Judge’s conclusion. As such, I do
not find the Judge’s decision to be unreasonable.
C.
Did the Judge Breach the Duty of Procedural
Fairness?
[30]
The Applicant argues two aspects of procedural
fairness. First, she argues she had legitimate expectations as to which
residency test would be used. Second, she claims that she was not given an
opportunity to respond to a negative credibility finding made against her. The
procedural fairness grounds are determined without a reference to the source of
the complaints (IE the residence questionnaire and the line in the judge’s
decision regarding credibility).
[31]
With regard to legitimate expectations, it is
understandable that, when given a hearing despite not meeting the physical
presence requirement, the Applicant might presume that a qualitative analysis
would be undertaken by the Judge.
[32]
However, I do not feel that any conduct or the
representations made in the Residence Questionnaire could reasonably be
described as “…clear, unambiguous and unqualified” as per CUPE at para
131. At best, it could be said that a reasonable inference might be made that a
qualitative assessment would be undertaken. This is not sufficient to establish
a breach of procedural fairness.
[33]
Likewise, I do not believe that the Applicant’s
argument regarding the Judge’s alleged credibility findings has merit. While it
is not clear whether the Judge is referring to sufficiency of evidence or
credibility in the statement brought into issue by the Applicant, on balance I
believe his statement effectively indicates his finding that the Applicant has
not met the physical presence requirement. It is not an indictment of her
credibility which requires a response. In any event, given that she
acknowledges she has not satisfied the physical presence test, ambiguity around
the credibility of her evidence is immaterial.
[34]
I find that there was no breach of procedural
fairness.
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