Docket: T-290-14
Citation:
2014 FC 846
Ottawa, Ontario, September 10, 2014
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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SHUO QIN (EVA QIN)
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review of
the November 26, 2013 decision of Citizenship Judge Babcock in which he found
that the Applicant did not accumulate the requisite days of residence required
for a grant of citizenship in accordance with s. 5(1)(c) of the Citizenship
Act, RSC, 1985, c C-29 [Act].
[2]
The Applicant is a permanent resident of Canada and citizen of China.
[3]
For the reasons below, I would allow the application
and send the matter back for redetermination by the same Citizenship Judge.
II.
The Facts
[4]
Shuo Qin became a permanent resident of Canada on August 24, 2005, and applied for Canadian citizenship on August 31, 2010. There
are three different descriptions of her absences from Canada in the relevant period:
a)
The Applicant declared 462 days of absence in
her original citizenship application within the material period (physically
present 998 days);
b)
The Applicant declared 522 days of absence in
her residence questionnaire (physically present 938 days);
c)
A Citizenship and Immigration Canada officer
determined 489 days of absence (physically present 971 days).
[5]
Whatever the correct figure of days abroad, the
Applicant was away for the vast majority of that time (343 days) on an exchange
program in Germany, as part of her degree from the University of Toronto.
[6]
The remainder of her time abroad was primarily
spent visiting family in China, with a few days on vacation.
[7]
There was significant evidence of attachment to Canada apart from her time spent in Canada and the degree obtained from the University of Toronto, including approximately one year spent in Canada as a permanent resident before the
commencement of the four-year residency period in question.
[8]
In August 2012, the Applicant appeared before
Citizenship Judge Geronikolos who, in a May 13, 2013 decision, applied the Koo
test [Koo (Re), [1993] 1 FC 286] and found that the Applicant was not “Canadianized” pursuant to the six-part test.
[9]
The Applicant appealed that decision. However,
after settlement discussions and with the consent of the Minister, Justice Zinn
issued an Order on August 12, 2013, to have Citizenship Judge Geronikolos’s
decision set aside and the application sent back for redetermination by a
different Citizenship Judge.
[10]
On November 25, 2013, the Applicant appeared
before Judge Babcock, who the new Judge seized with the citizenship application
pursuant to the Court’s Order of August 12, 2013.
[11]
The evidence on the Record is that Judge Babcock
advised the Applicant at the hearing, with her counsel present, that if he
found that she was indeed in Canada for 938 days, then she would receive a
positive decision.
III.
The Impugned Decision
[12]
On November 26, 2013, in brief reasons, Judge
Babcock applied the Pourghasemi (strict residency) test [Re
Pourghasemi, [1993] FCJ No 232] and found that the Applicant did not
accumulate 1095 days of physical presence in the relevant material period to
satisfy the requirements of s. 5(1)(c) of the Act, in spite of the fact
that he had undertaken to issue a positive decision if she met his condition
precedent of 938 days in Canada.
[13]
According to Judge Babcock’s written decision,
the documentary and oral evidence is that, at minimum, the Applicant spent 938
days in Canada (or 522 days absent) in the relative material period.
[14]
Judge Babcock declined to make a favourable
recommendation for a discretionary grant of citizenship pursuant to s. 5(4) of
the Act.
IV.
Issues
[15]
The first issue raised in this appeal is whether
Judge Babcock created a legitimate expectation and in so doing breached procedural
fairness requirements, in stating that the Koo test would be applied if a
condition precedent was met.
[16]
The second issue is whether it was reasonable
for Judge Babcock to choose the Pourghasemi test given the facts.
V.
Relevant Legislation
[17]
The relevant provisions of the Act are
reproduced in Annex A.
VI.
Submissions
A.
Applicant’s Submissions
[18]
The Applicant contends that Judge Babcock told her
that as long as she was in Canada for 938 days in the relevant period, he would
approve the application. Therefore, the decision applying Pourghasemi,
instead of Koo, was one made in bad faith.
[19]
Furthermore, the Applicant submits Judge Babcock
should have applied Koo because this application is the result of
consent to redetermine the result of a decision that had applied Koo. The
Applicant further submits that the Minister consented to the redetermination on
the basis that the original decision was unreasonable, which is implied in the
Order of the Court dated August 12, 2013.
B.
Respondent’s Submissions
[20]
The Respondent contends there is a presumption
the decision-maker acted in good faith and there is a high threshold for
establishing bad faith. The Respondent submits that the threshold has not been
met in this instance. There is no evidence that an undertaking to apply the Koo
test was made, aside from the Applicant’s affidavit, which should not be
admitted because it is hearsay.
[21]
There was no legitimate expectation that the Koo
test would have to be selected upon redetermination, given that there was no
such direction in the Court’s Order for redetermination, which certainly could
have been required had it been negotiated though the settlement. The Respondent
contends that even if such an undertaking had been made, the outcome would be
the same, because procedural fairness does not guarantee substantive rights.
[22]
The Respondent further argues that it was open
to the Citizenship Judge to apply the citizenship test of his choice, and the
decision, for this and the other reasons above, was entirely reasonable.
VII.
Standard of Review
[23]
Issues of procedural fairness are reviewed on a
standard of correctness: See Mission Institution v Khela, 2014 SCC 24 at
para 79; Dembele v. Canada (Citizenship and Immigration), 2012 FC 1434
at para. 11.
[24]
The standard of review of a judge’s assessment
of a citizenship application is that of reasonableness. This extends to the judge’s
selection of the citizenship test: Gavriluta v Canada (Citizenship and
Immigration), 2013 FC 705 at para 27.
VIII. Analysis
[25]
With respect to the first issue of bad faith
and/or legitimate expectations, the only evidence before the Court is that
provided by the Applicant’s affidavit. Nothing in the decision, notes of the
Judge, or elsewhere in the Tribunal Record, provides a countervailing position.
[26]
The basic rule of evidence is that all relevant
evidence is admissible: R v Khelawon, 2006 SCC 57 [Khelawon] at
para 2.
[27]
As mentioned at paragraph 35 of Khelawon,
the essential features of hearsay are that –
1)
the statement is adduced to prove the truth of
its contents; and
2)
there is an absence of a contemporaneous
opportunity to cross examine the declarant.
[28]
Rule 83 of the Federal Courts Rules
allows for an application to cross-examine the deponent of an affidavit served
by an adverse party. Consequently, the Respondent had an opportunity to
cross-examine the Applicant and chose not to test the veracity of Ms. Qin’s
claim. Nothing on the Record counters her rendition of the oral hearing, other
than the application of the physical residency test by the Judge.
[29]
Given the uncontradicted evidence, wherein Judge
Babcock informed the Applicant that he would issue a positive decision if he
found that she had been in Canada for 938 days in the four-year period at
issue, we need to consider whether this reaches the level of bad faith, as the
Applicant contends.
[30]
To establish bad faith, the Applicant must
overcome the presumption that decision- makers act in good faith: See Freeman
v Canada (Citizenship and Immigration), 2013 FC 1065 at para 25.
[31]
Bad faith has been recognized to encompass
malice or intention to harm, as well as recklessness or serious carelessness: See
Freeman, above, at para, 29; Finney v. Barreau du Québec, 2004
SCC 36 at para 39.
[32]
It is the Court’s view that applying a different
citizenship test than that which was promised at the hearing, when such
decision is discretionary, would not reach the high threshold of bad faith.
Likewise, the errant mailing of a document to the Applicant, rather than
counsel, does not reach that threshold either (which was another point raised
by the Applicant).
[33]
However, related to the issue of bad faith, and
one addressed in the Respondent’s materials and in oral arguments by the
Applicant, is whether the Applicant placed a legitimate expectation that Judge
Babcock would apply the Koo test.
[34]
In Canada (Attorney General) v Mavi,
2011 SCC 30 at para 68, Justice Binnie explained the foundational principles of
the legitimate expectations’ doctrine:
Where a government official makes
representations within the scope of his or her authority to an individual about
an administrative process that the government will follow, and the
representations said to give rise to the legitimate expectations are clear,
unambiguous and unqualified, the government may be held to its word, provided
the representations are procedural in nature and do not conflict with the
decision maker’s statutory duty. Proof of reliance is not a requisite.
[35]
The legitimate expectation that would flow from
the Judge’s statement at the hearing regarding residency, in this case, was
that if the 938 days of residence was found to be accurate, the Judge would
approve the application based on the qualitative Koo test, because applying
a strict residency test could not have resulted in this conclusion.
[36]
The Applicant stated that she relied on the
undertaking in presenting her case regarding the extent of her significant “Canadianization”. It was certainly reasonable to do so
based on the hearing, and the entire history of the matter before both the Citizenship
Commission and this Court. Case law supports this position, given the
Applicant’s attachment to Canada, and reason for her absences, under the
qualitative Koo test: See El-Kashef v Canada (Citizenship and
Immigration), 2012 FC 1151 at para 30; El Ocla v Canada (Citizenship and Immigration), 2011 FC 533.
[37]
In this case, the switching of the test once the
condition precedent had been met, resulted in a breach of the Applicant’s
legitimate expectations and therefore yielded a breach of procedural fairness: Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at
para. 26.
[38]
Finally, with respect to the second issue,
suffice it to say that absent the undertaking to the Applicant at the hearing
under review, it would have been completely open to Judge Babcock to use
whatever test he chose. Therefore, in ordinary circumstances, the Applicant
could have been properly refused citizenship due to the fact that she did not
meet the strict residency standard required by Pourghamesi, as upheld in
recent case law: Huang v Canada (Citizenship and Immigration), 2013 FC
1074; Martinez-Caro v Canada (Citizenship and Immigiration), 2011 FC
640.
[39]
As has been pointed out numerous times by this Court,
a Citizenship Judge should be provided with a measure of deference in choosing
the test to adopt, and the Court should only intervene if the choice is
unreasonable: See Knezevic v. Canada (Citizenship and Immigration), 2014
FC 181 at para 1; Gavriluta v Canada (Citizenship and Immigration), 2013
FC 705 at para 27.
[40]
The Applicant finds herself in that unusual
situation due to what transpired at her hearing. She understood that the Koo
test would be applied and governed herself accordingly.
IX.
Conclusion
[41]
As a consequence of the breach of procedural
fairness when the Koo test was not applied, the matter will be sent back
for redetermination by the same Citizenship Judge.
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