Docket: T-140-15
Citation:
2015 FC 872
Montréal, Quebec, July 16, 2015
PRESENT: The
Honourable Mr. Justice Shore
|
BETWEEN:
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Applicant
|
|
and
|
|
VENERA DEMUROVA
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
A Citizenship Judge is not entitled to simply
waive the requirement of physical presence, as this would run contrary to the
purpose of the Citizenship Act, RSC 1985, c C 29 [Act] (Canada
(Minister of Citizenship and Immigration) v Pereira, 2014 FC 574 at paras
28 and 29 [Pereira]). Moreover, this Court has found that a Citizenship
Judge’s “blending” of the citizenship test
constitutes an error of law (Ukaobasi v Canada (Minister of Citizenship and
Immigration), 2015 FC 561 at para 13 [Ukaobasi]).
II.
Background
[2]
The Minister challenges a decision dated
December 31, 2014, rendered by a Citizenship Judge, granting Canadian
citizenship to the Respondent, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27.
[3]
The Respondent is a citizen of Russia who became
a permanent resident of Canada on March 17, 2008.
[4]
The Respondent filed an application for
citizenship on July 25, 2011. The relevant time period for the purposes of
determining the Respondent’s residency in accordance with paragraph 5(1)(c)
of the Act runs from July 25, 2007 to July 25, 2011.
[5]
On February 25, 2013, the Respondent
attended an interview with a citizenship officer. The officer prepared a File
Preparation and Analysis Template [FPAT] and placed it on file for consideration
by the Citizenship Judge.
[6]
On December 29, 2014, the Respondent
appeared before the Citizenship Judge.
III.
Impugned Decision
[7]
In the impugned decision, the Citizenship Judge
considers the concerns raised by the citizenship officer in the FPAT, which
include the observation of a two-day shortfall from the required minimal 1,095
days of presence in Canada, an undeclared re-entry stamp to Canada dated
April 10, 2009, an undeclared entry/exit stamp from Turkey, and other
credibility concerns relating to the Respondent’s residence and employment
history.
[8]
First, the Citizenship Judge finds that a
shortfall of two days of the minimal requirement of 1,095 days of physical
presence in Canada is not significant.
[9]
Second, the Citizenship Judge is satisfied that
apart from the undeclared seven day trip to Cuba in 2009, the Respondent’s
passport entries support her declarations.
[10]
Third, the Citizenship Judge finds that the
Respondent’s trip to Turkey is inconsequential to her number of days of
presence in Canada because it occurred during the Respondent’s declared 61-day
trip to Russia. The Citizenship Judge also notes that this ambiguity was
clarified by the Respondent in her Residence Questionnaire, at question 7.
[11]
Fourth, the Citizenship Judge is satisfied that
the Respondent’s explanations for her absences during the relevant period are
credible and supported by the evidence.
[12]
The Citizenship Judge ultimately finds that:
[T]he Applicant told her story in a
forthright manner and was able to clearly explain the concerns raised by the
agent in the FPAT. She did not give me any reasons to doubt her declarations.
Furthermore, I gave particular weight to her travel documents which, along with
the [Integrated Customs and Enforcement System] report, confirm her oral
testimony. And, I note that she presented Notices of Assessment from Revenue
Canada (except for 2010 when she was away as declared) and these also
corroborate her oral and written statements.
(Impugned decision, Certified Tribunal
Record, at p 14)
[13]
Finally, the Citizenship Judge concludes that
the Respondent meets the physical presence test enunciated in Pourghasemi
(Re), [1993] FCJ 232 [Pourghasemi].
IV.
Legislative Provision
[14]
Subsection 5(1) of the Act outlines the
requirements applicants must fulfill in order to acquire Canadian citizenship:
|
Grant of citizenship
|
Attribution de la citoyenneté
|
|
5. (1) The Minister shall grant
citizenship to any person who
|
5. (1)
Le ministre attribue la citoyenneté à toute personne qui, à la fois :
|
|
(a) makes application for citizenship;
|
a) en fait
la demande;
|
|
(b) is eighteen years of age or over;
|
b) est
âgée d’au moins dix-huit ans;
|
|
(c) is a permanent resident within the meaning of
subsection 2(1) of the Immigration and Refugee Protection Act, has, subject
to the regulations, no unfulfilled conditions under that Act relating to his
or her status as a permanent resident and has, since becoming a permanent
resident,
|
c) est
un résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration
et la protection des réfugiés, a, sous réserve des règlements, satisfait à
toute condition rattachée à son statut de résident permanent en vertu de
cette loi et, après être devenue résident permanent :
|
|
(i) been physically present in
Canada for at least 1,460 days during the six years immediately before the
date of his or her application,
|
(i) a été effectivement présent au Canada pendant au moins
mille quatre cent soixante jours au cours des six ans qui ont précédé la date
de sa demande,
|
|
(ii) been physically present in
Canada for at least 183 days during each of four calendar years that are
fully or partially within the six years immediately before the date of his or
her application, and
|
(ii) a été effectivement présent au Canada pendant au moins
cent quatre-vingt-trois jours par année civile au cours de quatre des années
complètement ou partiellement comprises dans les six ans qui ont précédé la
date de sa demande,
|
|
(iii) met any applicable requirement
under the Income Tax Act to file a return of income in respect of four
taxation years that are fully or partially within the six years immediately
before the date of his or her application;
|
(iii) a rempli toute exigence applicable prévue par la Loi
de l’impôt sur le revenu de présenter une déclaration de revenu pour quatre
des années d’imposition complètement ou partiellement comprises dans les six
ans qui ont précédé la date de sa demande;
|
|
…
|
[…]
|
|
(d) if under 65 years of age at the date of his or her
application, has an adequate knowledge of one of the official languages of
Canada;
|
d) si
elle a moins de 65 ans à la date de sa demande, a une connaissance suffisante
de l’une des langues officielles du Canada;
|
|
(e) if under 65 years of age at the date of his or her
application, demonstrates in one of the official languages of Canada that he
or she has an adequate knowledge of Canada and of the responsibilities and
privileges of citizenship; and
|
e) si
elle a moins de 65 ans à la date de sa demande, démontre dans l’une des
langues officielles du Canada qu’elle a une connaissance suffisante du Canada
et des responsabilités et avantages conférés par la citoyenneté;
|
|
(f) is not under a removal order and is not the subject of
a declaration by the Governor in Council made pursuant to section 20.
|
f)
n’est pas sous le coup d’une mesure de renvoi et n’est pas visée par une
déclaration du gouverneur en conseil faite en application de l’article 20.
|
V.
Issues
[15]
The Respondent submits the following issues to
the Court:
a)
Did the Citizenship Judge err in the application
of the strict physical presence test to determine whether the residency
requirement under paragraph 5(1)(c) of the Act was met?
b)
Did the Citizenship Judge fail to adequately
assess the evidence resulting in unreasonable finding of fact?
VI.
Standard of Review
[16]
A Citizenship Judge’s findings in respect of
whether the residency requirements for the purposes of paragraph 5(1)(c)
of the Act are met are questions of mixed fact and law that are reviewable on
the standard of reasonableness (Canada (Minister of Citizenship and
Immigration) v Vijayan, 2015 FC 289 at para 20; Zhou v Canada
(Minister of Citizenship and Immigration), 2013 FC 19 at para 13).
[17]
As such, the highly discretionary nature of the
Citizenship Judge’s decision attracts considerable deference from this Court (Dunsmuir
v New Brunswick, [2008] 1 S.C.R. 190 at para 48).
VII.
Analysis
[18]
Paragraph 5(1)(c) of the Act provides
that citizenship applicants bear the onus of demonstrating that they have
accumulated at least three years of residence in Canada – or 1,095 days –
during the relevant four-year period.
[19]
This Court’s jurisprudence has recognized that
Citizenship Judges are entitled to choose from among the three accepted
citizenship tests (Pereira, above at para 15; Chaudhry v Canada
(Minister of Citizenship and Immigration), 2011 FC 179 at para 23).
[20]
The Court may not intervene unless the chosen
citizenship test was applied in an unreasonable manner (Balta v Canada
(Minister of Citizenship and Immigration), 2011 FC 1509 at para 10).
[21]
The physical presence test provided in Pourghasemi,
above, is more restrictive than the qualitative residency tests elaborated in Re
Papadogiorgakis [1978] 2 FC 208 (“centralized mode
of living” test) and Koo (Re), [1993] 1 FC 286 (“substantial connection” test), as it requires a
quantitative assessment of the number of days the Respondent has physically
spent in Canada (Donohue v Canada (Minister of Citizenship and Immigration),
2014 FC 394 at para 19).
[22]
In the case at hand, in applying the physical
presence test found in Pourghasemi, above, the Citizenship Judge found
that the Respondent was physically present in Canada for 1,093 days (Impugned
Decision, Certified Tribunal Record, at pp 13 and 15).
[23]
This is an unreasonable outcome which warrants
the Court’s intervention.
[24]
A Citizenship Judge is not entitled to simply
waive the requirement of physical presence, as this would run contrary to the
purpose of the Act (Pereira, above at paras 28 and 29). Moreover, this
Court has found that a Citizenship Judge’s “blending”
of the citizenship test constitutes an error of law (Ukaobasi, above at
para 13).
[25]
Justice Donald J. Rennie’s reasoning in Martinez-Caro
v Canada (Minister of Citizenship and Immigration), [2011] FCJ 881 at paras
29-33, sheds light on Parliament’s intent in legislating the residency
requirements found in paragraph 5(1)(c) of the Act:
[29] … 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.
[Emphasis added.]
[26]
Furthermore, as pointed out by Justice Peter B.
Annis in Canada (Minister of Citizenship and Immigration) v Naveen, 2013
FC 972 at para 27, allowing the Citizenship Judge’s reasoning to stand would
render subsection 5(4) of the Act redundant:
[27] Fortunately, my decision on which
test to apply is much assisted by the reasons of Justice Rennie in
Martinez-Caro. Justice Rennie provides persuasive grounds supporting an
interpretation of residency in section 5(1)(c) that would necessitate the
demonstration of a sufficient degree of "Canadianization" by physical
presence in the country, as previously described in Re Pourghasemi, [1993] FCJ
No 232 (QL) (TD) [Pourghasemi ]. He explains that on a plain and ordinary
reading, Parliament has expressly defined the amount of latitude allowed.
Parliament has prescribed that over the course of 1,460 days, applicants for
citizenship must accumulate at least 1,095 days of residence; this is not a
test of their intentions, but a quantitative analysis of their actions.
Furthermore, the statute expressly provides for exceptional circumstances in
which days spent outside Canada nonetheless count towards residence, and also
expressly provides at section 5(4) for a procedure to recommend to the Minister
that the requirement for physical presence be waived" in cases of special
and unusual hardship or to reward services of an exceptional value to
Canada." This provision would be redundant if a Citizenship Judge could
simply waive the requirement.
[Emphasis added.]
VIII.
Conclusion
[27]
For the reasons above, the Minister’s
application for judicial review is allowed.
[28]
The Court observes that the Respondent may
re-apply for citizenship if she so wishes.
Email this Content