A somewhat unusual case as it concerns the nature of land ownership rights in China. However, it must be noted that the court will not intervene where the visa officer's decision was reasonable and procedural fairness was observed.
Ye v. Canada (Minister of Citizenship and Immigration)
Between
Zhi Ming Ye, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 884
2011 FC 677
Docket IMM-4988-10
Federal Court
Vancouver, British Columbia
O'Keefe J.
Heard: March 24, 2011.
Judgment: June 13, 2011.
(35 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 O'KEEFE J.:-- This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, R.S.C. 2001, c. 27 (the Act) for judicial review of a decision of a designated immigration officer of the Canadian Consulate General in Hong Kong, China (the officer), dated June 23, 2010, wherein the officer determined that the applicant did not meet the requirements for a permanent resident visa as an investor.
2 The applicant requests that the decision of the officer be set aside and the application remitted for redetermination by a different officer.
Background
3 Zhi Ming Ye (the applicant) was born on January 2, 1966 and is a citizen of the People's Republic of China. He is currently a vice general manager of a handbag manufacturing company.
4 On June 25, 2008, the applicant submitted an application for permanent residence in Canada as a member of the investor class. He declared that he had an estimated personal net worth (PNW) of C$864,000, of which C$332,000 was from a property located at Production Team 12 in Renhe Township, Renhe District Commune, Baiyun District, Guangzhou, China (the property).
5 The application was refused on May 12, 2010. The applicant subsequently submitted further documentation and the officer reconsidered the application, but it was again refused on June 23, 2010.
Officer's Decision
6 The officer found that pursuant to subsection 12(2) of the Act and subsection 90(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227, (the Regulations), a foreign national may become a permanent resident based on his or her ability to become economically established in Canada as an investor defined in subsection 88(1) of the Regulations.
7 At the time, subsection 88(1) defined an investor as a foreign national who (a) has business experience, (b) has a legally obtained minimum net worth of at least $800,000 and (c) intends to make an investment.
8 Subsection 88(1) also defines net worth as, in respect of the foreign national and their spouse or common-law partner, the fair market value of all their assets minus the fair market value of all their liabilities.
9 The officer was not satisfied that the applicant had a minimum net worth of at least $800,000. The officer's concern was with the value of the property noted above.
10 The officer found that:
• 1. The applicant had not demonstrated that he has ownership of the land on which the property was built;
• 2. The applicant had the right to construct houses and related facilities for personal residential purposes, but had built a five storey building with a commercial store on the ground floor, apparently violating the terms of the use for the land; and
• 3. The applicant only had the right to transfer the use of the land to the members of the same collective economic organization. However, the appraisal report submitted by the applicant stated that the property was appraised based on free transferability on the open market. The officer was not satisfied that the appraisal report accurately reflected the fair market value of the property.
11 The officer concluded that the applicant had not presented sufficient and credible evidence of his ability to meet the minimum PNW requirement for an investor.
Issues
12 The applicant submitted the following issue for consideration:
• Did the officer err in excluding the value of the property from the applicant's assets, or reducing its value to zero?
13 I would rephrase the issues as follows:
• 1. What is the appropriate standard of review?
• 2. Did the officer err in finding that the applicant had not demonstrated a personal net worth of at least $800,000?
• 3. Did the officer breach the applicant's right to procedural fairness?
Applicant's Written Submissions
14 The applicant submits that the officer's reasons were not adequate as it was unclear how the value of the property was treated. The applicant submits that it was unreasonable for the officer to determine that the value of the property was zero due to perceived problems with the appraisal report. If the officer had concerns about the use of the terms "open market" and "free transferability" in the appraisal, she ought to have convened an interview to disabuse those concerns. Failure to do so was a breach of procedural fairness.
15 The applicant also argues that the appraisal company clearly understood the nature of the property by stating that it was a land using certificate which the applicant held and including the certificate in the appendix of the appraisal. The appraisal company also compared similar property in the area to reach the appraisal. The applicant submits that the term market value does not suggest the appraisal company valued the property as if it were not subject to the requirements of the land use certificate. Rather, market value takes into account the highest and best use of the property.
16 Further, the applicant argues that the land use certificate gives the applicant the right to build and own buildings on the land covered by the certificate, as well as the right to transfer the certificate to others in the collective. Thus, the buildings and land use certificate itself were assets of the applicant.
17 Finally, the applicant submits that it was unreasonable for the officer to find that an alleged breach of the land use certificate resulted in the property being of no or little value. There was no evidence to suggest the effect of the commercial store on the ability to transfer the land use certificate.
Respondent's Written Submissions
18 The respondent emphasizes that the onus was on the applicant to provide all necessary and credible supporting documentation to the immigration officer in support his application. The evidence provided by the applicant on the value of the property was ambiguous. The applicant acknowledged this by stating that it was not clear what impact the violation of the land use certificate would have on the property. The respondent submits that ambiguous evidence is not sufficient to meet the onus on the applicant that he has a PNW of at least $800,000.
19 The respondent also submits that while the applicant has argued that the appraisal company did take into account the transfer restrictions on the land use certificate, this is merely an alternative view of the evidence. It does not demonstrate the officer's interpretation of the evidence was unreasonable. The conflicting evidence is ambiguous and the officer was not required to request a new valuation.
20 Finally, the respondent submits that the officer provided the applicant an opportunity to respond to her concerns by accepting new evidence and reconsidering the application. She was not required to provide the applicant a further opportunity to clarify his application.
Analysis and Decision
Issue 1
What is the appropriate standard of review?
21 The officer found that the applicant did not have sufficient PNW to be an investor under section 90 of the Regulations. This was a finding of fact. The Supreme Court emphasized in Khosa v. Canada (Minister of Citizenship and Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph 46, that paragraph 18.1(4)(d) of the Federal Courts Act, RS, 1985, c. F-7, demonstrates that Parliament intended for the Court to afford a high degree of defence to administrative fact finding. This finding will therefore be reviewed on the reasonableness standard.
22 The applicant has also raised issues of procedural fairness which will be assessed on the correctness standard (see Khosa above, at paragraph 43).
Issue 2
• Did the officer err in finding that the applicant had not demonstrated a personal net worth of at least $800,000?
23 Generally, the onus is on the applicant to provide evidence to support his application. As Mr. Justice Paul Crampton stated in Pan v. Canada (Minister of Citizenship and Immigration), 2010 FC 838 at paragraph 27:
• In general, the onus is on a visa applicant to put his best foot forward by providing all relevant supporting documentation and sufficient credible evidence in support of his application.
24 The duty, in this case, was for the applicant to show that he had a PNW of at least $800,000 as per the version of subsection 88(1) of the Regulations at the time of the application. The applicant included the appraisal of the Renhe township property as evidence of his PNW.
25 The immigration officer took issue with the fact that the applicant did not own the land on which the buildings were constructed and could not transfer the land to others outside of his collective and yet, the appraisal of the property was based on a "complete property right and free transferability in open market".
26 The applicant submitted a letter from the appraisal company in his additional materials for reconsideration of the application. In this letter, the appraisal company explains Chinese land use rights and details the restrictions on properties that have land use certificates. However, the letter does not state that the appraisal company took into consideration the land use certificate restrictions when appraising the property in question. This is confusing at best.
27 The onus was on the applicant to demonstrate through sufficient and credible evidence, not ambiguous evidence, that he had a personal net worth of at least $800,000. I cannot find that the immigration officer's interpretation of the appraisal report and additional materials was unreasonable. Therefore, the conclusion that the applicant had not clearly shown he had a PNW of at least $800,000 was also not unreasonable.
Issue 3
• Did the officer breach the applicant's right to procedural fairness?
28 The officer did not breach procedural fairness for the following reasons.
29 As noted above, the onus is on the applicant to satisfy the officer of all parts of his application. The case law specifies that an immigration officer is not under a duty to inform the applicant about any concerns regarding the application which arise directly from the requirements of the legislation or regulations (see Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at paragraphs 23 and 24). Neither is the officer under an obligation to ask for additional information where the applicant's material is insufficient (see Madan v. Canada (Minister of Citizenship and Immigration) (1999), 172 FTR 262 (FCTD), [1999] F.C.J. No. 1198 (QL) at paragraph 6).
30 However, an immigration officer is obligated to inform the applicant of any concerns related to the veracity of documents and will be required to make further inquires (see Hassani above, at paragraph 24).
31 The Regulations define investor in subsection 88(1) as a person with a PNW of at least $800,000. The onus was on the applicant to demonstrate that he met this requirement which included demonstrating clearly that he owned the property and that its value put him above the required PNW necessary.
32 The officer refused the applicant's application initially because the applicant had not proven ownership as required by the Regulations. She sent a letter of refusal indicating her concerns with the appraisal report in particular. The applicant then submitted additional materials and requested the officer to reconsider. The officer considered these materials and reassessed the application finding that the applicant had not assuaged her concerns that the applicant did not meet the $800,000 requirement in the Regulations. The officer was not obliged to provide the applicant with further opportunities to satisfy her concerns.
33 I would therefore dismiss the application for judicial review.
34 Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
35 IT IS ORDERED that the application for judicial review is dismissed.
O'KEEFE J.
* * * * *
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, RS 2001, c. 27)
• 12.(2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.
• 72. (1) Judicial review by the Federal Court with respect to any matter -- a decision, determination or order made, a measure taken or a question raised -- under this Act is commenced by making an application for leave to the Court.
* * *
• 12.(2) La sélection des étrangers de la catégorie "immigration économique" se fait en fonction de leur capacité à réussir leur établissement économique au Canada.
• 72. (1) Le contrôle judiciaire par la Cour fédérale de toute mesure -- décision, ordonnance, question ou affaire -- prise dans le cadre de la présente loi est subordonné au dépôt d'une demande d'autorisation.
Immigration and Refugee Protection Regulations (SOR/2002-227)
• 90. (1) For the purposes of subsection 12(2) of the Act, the investor class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada and who are investors within the meaning of subsection 88(1).
* * *
• 90. (1) Pour l'application du paragraphe 12(2) de la Loi, la catégorie des investisseurs est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents du fait de leur capacité à réussir leur établissement économique au Canada et qui sont des investisseurs au sens du paragraphe 88(1).
Thursday, June 30, 2011
IMMIGRATION EMPLOYEE IN LABOUR DISPUTE OVER PERFUME
I thought it was a joke, but it is a real story.No wonder their processing times are so long!
http://www.nationalpost.com/news/Civil+servant+scent+labour+dispute/5027248/story.html
Civil servant in the scent of a labour dispute
Adrian Humphreys, National Post • Jun. 30, 2011
Last Updated: Jun. 30, 2011 3:02 AM ET
A federal civil servant who says he took 11 weeks of sick leave because his colleagues wore too much perfume and cologne wants all of his sick time allotment restored, claiming his employer failed to accommodate him.
Terence Juba, who processes immigration applications for the Department of Citizenship and Immigration in Vegreville, Alta., said his debilitating scent sensitivity was triggered by certain fragrances he detected in the office, requiring him to use far more than the 187.5 hours of paid sick leave allowed under the Public Service Alliance of Canada collective bargaining agreement.
When Mr. Juba put up a scent-free zone sign, his colleagues did not respond well, he told a Public Service Labour Relations Board.
"They took the view that they were entitled to wear deodorant, use soap and wear perfumes, and in profane terms, they told him to mind his own business," the board said, summarizing evidence at a recent hearing.
After his complaints, the office imposed a scent-free policy, unfortunately introduced on April Fool's Day in 2006.
The policy, sent to all employees, says: "Respecting a scent-free policy means ceasing to wear or use items that have a scent attached to them by artificial means."
Four months after the policy implementation, which he said was largely ignored, Mr. Juba filed his grievance to refill his exhausted sick day bank. "I grieve that I had to use my sick leave credits for time missed due to the scent issues in the office," he wrote.
His sick days were used over three years.
He testified he has suffered scent sensitivity all his life. His symptoms can include headaches, runny nose, nosebleeds, lack of concentration and irritability. He sought medical aid but was told by doctors there was no cure.
The government, however, said it "did everything in its power" to accommodate Mr. Juba. He was moved to different locations in the building. He was bought an air purifier. The airflow in the office was tested. The manager called in an external consultant to speak with staff, and employees were reminded regularly of the concern over scent, the labour board heard.
To compensate for the negative balance in his sick leave, Mr. Juba was allowed to work overtime, which could then be exchanged for additional sick leave credits. Mr. Juba worked the overtime but then chose pay instead.
Mr. Juba did not provide medical information that a particular accommodation was required and did not present any evidence that the employer caused him to work in an unsafe or unhealthy environment, the board heard.
An earlier complaint by Mr. Juba to the Workers' Compensation Board declared his sensitivity was not a disability and not compensable.
Mr. Juba had no more success with the labour board.
Paul Love, the adjudicator, dismissed the claim last month, saying Mr. Juba did not call any medical evidence to establish the extent of his scent sensitivity or what needed to be done to alleviate it.
http://www.nationalpost.com/news/Civil+servant+scent+labour+dispute/5027248/story.html
Civil servant in the scent of a labour dispute
Adrian Humphreys, National Post • Jun. 30, 2011
Last Updated: Jun. 30, 2011 3:02 AM ET
A federal civil servant who says he took 11 weeks of sick leave because his colleagues wore too much perfume and cologne wants all of his sick time allotment restored, claiming his employer failed to accommodate him.
Terence Juba, who processes immigration applications for the Department of Citizenship and Immigration in Vegreville, Alta., said his debilitating scent sensitivity was triggered by certain fragrances he detected in the office, requiring him to use far more than the 187.5 hours of paid sick leave allowed under the Public Service Alliance of Canada collective bargaining agreement.
When Mr. Juba put up a scent-free zone sign, his colleagues did not respond well, he told a Public Service Labour Relations Board.
"They took the view that they were entitled to wear deodorant, use soap and wear perfumes, and in profane terms, they told him to mind his own business," the board said, summarizing evidence at a recent hearing.
After his complaints, the office imposed a scent-free policy, unfortunately introduced on April Fool's Day in 2006.
The policy, sent to all employees, says: "Respecting a scent-free policy means ceasing to wear or use items that have a scent attached to them by artificial means."
Four months after the policy implementation, which he said was largely ignored, Mr. Juba filed his grievance to refill his exhausted sick day bank. "I grieve that I had to use my sick leave credits for time missed due to the scent issues in the office," he wrote.
His sick days were used over three years.
He testified he has suffered scent sensitivity all his life. His symptoms can include headaches, runny nose, nosebleeds, lack of concentration and irritability. He sought medical aid but was told by doctors there was no cure.
The government, however, said it "did everything in its power" to accommodate Mr. Juba. He was moved to different locations in the building. He was bought an air purifier. The airflow in the office was tested. The manager called in an external consultant to speak with staff, and employees were reminded regularly of the concern over scent, the labour board heard.
To compensate for the negative balance in his sick leave, Mr. Juba was allowed to work overtime, which could then be exchanged for additional sick leave credits. Mr. Juba worked the overtime but then chose pay instead.
Mr. Juba did not provide medical information that a particular accommodation was required and did not present any evidence that the employer caused him to work in an unsafe or unhealthy environment, the board heard.
An earlier complaint by Mr. Juba to the Workers' Compensation Board declared his sensitivity was not a disability and not compensable.
Mr. Juba had no more success with the labour board.
Paul Love, the adjudicator, dismissed the claim last month, saying Mr. Juba did not call any medical evidence to establish the extent of his scent sensitivity or what needed to be done to alleviate it.
CITIZENSHIP DENIED TO FREQUENT TRAVELER
Very thorough analysis of the current state of the law. The bottom line: the Citizenship judge has discretion to apply the test of strict residency in Canada.
Martinez-Caro v. Canada (Minister of Citizenship and Immigration)
Between
Fernando Martinez-Caro, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 881
2011 FC 640
Docket T-1424-10
Federal Court
Toronto, Ontario
Rennie J.
Heard: January 18, 2011.
Judgment: June 14, 2011.
(55 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 RENNIE J.:-- The applicant appeals a Citizenship Court decision refusing his application for Canadian citizenship. His appeal is brought pursuant to subsection 14(5) of the Citizenship Act (R.S., 1985, c. C-29) (the Act), and is governed by the Federal Courts Rules pertaining to applications; hence his status as applicant and the Minister's as respondent. The Act does not provide for further appeals following a disposition by this Court. For the reasons that follow, this appeal is dismissed.
Facts
2 The applicant is an executive at InMet, a Canadian mining company. Prior to that, he was employed by Ferrovial Agroman Canada Inc., a subsidiary of Ferrovial Agroman S.A., an international construction company. In 1999, while in the employ of Ferrovial, the applicant and his family moved to Canada. They applied for and were granted permanent residency status. They later applied for and were granted citizenship - all except for the applicant. The applicant's wife and his two children are now Canadian citizens. The applicant is not.
3 In his position at Ferrovial Agroman Canada Inc. the applicant was often required to travel abroad. The Citizenship Judge found that the applicant made the change in employment from Ferrovial to InMet in order to reduce the amount of travel and time away from his family.
4 The Citizenship Judge applied the decision of this Court in Re Pourghasemi, [1993] F.C.J. No. 232 in arriving at his decision not to grant the applicant Canadian citizenship. The Citizenship Judge found that the applicant fell short of the 1,095 days required under the Act in order to qualify for citizenship. The applicant had only 689 days of physical presence in Canada. He had been outside Canada for 771 days.
5 This Court has been asked to determine whether the Citizenship Court erred when it interpreted the definition of residency in subsection 5(1)(c) of the Act to mean physical presence in Canada. The provision reads:
• 5. (1) The Minister shall grant citizenship to any person who
• ...
• (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner:
• (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and
• (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;
...
[Emphasis added]
* * *
• 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois:
• ...
• c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante :
• (i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent,
• (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent;
...
[Notre soulignement]
6 In my view, the Citizenship Court did not err.
The Law
7 Since the Act received Royal Assent in 1977, three lines of reasoning have emerged with respect to the residency requirement found in subsection 5(1)(c) of the Act: the centralized mode of living test; the so-called six-factor Koo (Re) test, which is focused on where the applicant regularly, normally or customarily lives, and the physical presence test, which is focused on whether the applicant's physical presence in Canada meets or exceeds 1,095 days. Justice Sean Harrington succinctly summarised the three schools in Canada (Minister of Citizenship & Immigration) v Salim, 2010 FC 975 at para 1:
• According to one school of thought, residence means physical presence. Two others state that in certain circumstances a person satisfies the requirement if here in spirit, but not in body.
• ...
• For over 30 years, we have been plagued with three residency tests or, as some would have it, two tests, the second having two branches.
8 The divergent jurisprudence arises, in part, from the absence of a definition of residence in the Act but also, as Justice James O'Reilly observed in Canada (Minister of Citizenship & Immigration) v. Nandre, 2003 FCT 650, para 10:
• ...it results in part from the fact that citizenship appeals go no further than the Trial Division of the Federal Court. The unifying and standardizing role of the Federal Court of Appeal is absent in these matters. Without binding authority, individual judges of this Court must determine whether the Act is capable of more than one interpretation and, if so, whether it should be left to citizenship judges to choose one.
9 This Court has also held that determining whether the residency requirement has been met consists of a two stage inquiry. The first stage contemplates whether the applicant has established a physical residence within Canada. If, and only if this requirement has been met does one proceed to the second stage of the inquiry which contemplates whether the applicant has accumulated 1,095 days (the equivalent of three years) of residency in Canada: Goudimenko v. Canada (Minister of Citizenship & Immigration), 2002 FCT 447. Failure to find that there is a residence in Canada ends the matter: Abbas v. Canada (Citizenship and Immigration), 2011 FC 145. It is at the second stage of the inquiry where the Court has diverged with respect to interpreting the three year residency requirement.
10 Re Papadogiorgakis, [1978] 2 F.C. 208 was one of the first cases of this Court to address subsection 5(c)(1) [subsection 5(b) as it then was] of the Act. In that case, the applicant had immigrated to Canada from Crete. He attended university in Nova Scotia and established residency with some friends. However, Papadogiorgakis shortly thereafter went to university in the United States, occasionally making trips back to Canada. He divided his place of physical presence between the two countries.
11 The Citizenship Judge refused Papadogiorgakis's application on the basis that he had not accumulated three years of residency in the four years immediately preceding his application. On appeal, Associate Chief Justice Thurlow held that even though Papadogiorgakis had not accumulated 1,095 days of residence in Canada, because he had "centralized his mode of living in Canada" the three year residency requirement had indeed been met: Papadogiorgakis, para 17. Thurlow ACJ allowed the appeal and found that Papadogiorgakis had met the residency requirement.
12 Thurlow ACJ looked to existing jurisprudence to best understand what could be meant by residence because the term was left undefined in the Act. He first considered Blaha v. Minister of Citizenship & Immigration, [1971] FC 521, wherein Pratte J. interpreted residency in the Act's predecessor; the Canadian Citizenship Act (R.S.C. 1970, c. C-19.). Pratte J. likened residence to "place of domicile," holding:
• In my opinion a person is resident in Canada within the meaning of the Canadian Citizenship Act only if he is physically present (at least usually) on Canadian territory. I feel that this interpretation is in keeping with the spirit of the Act, which seems to require of the foreigner wishing to acquire Canadian citizenship, not only that he possess certain civic and moral qualifications, and intends to reside in Canada on a permanent basis, but also that he has actually lived in Canada for an appreciable time. Parliament wishes by this means to ensure that Canadian citizenship is granted only to persons who have shown they are capable of becoming a part of our society. (para.11)
13 Rejecting that opinion, Thurlow ACJ turned to the Supreme Court of Canada's (SCC) articulation of residence under the Income Tax Act (1985, c. 1 (5th Supp.)). In Thomson v. Minister of National Revenue, [1946] S.C.R. 209, the SCC held that:
• ... in all cases residence...is chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question.
14 It was upon this reasoning that Thurlow ACJ arrived at his decision that Papadogiorgakis had nonetheless met the residency requirement even though he had only 79 days of physical presence in Canada. The Papadogiorgakis case would later come to be known as the "centralized mode of living test" and one of the lines of reasoning with respect to the three year residency requirement. It was at that point that the jurisprudence began to diverge.
15 In my view, the principles that guide the interpretation of the residency provisions of the Income Tax Act bear little relation to those that guide the interpretation of residency for the purpose of citizenship. The statutes are not in pari materia, nor can it be said that Parliament was motivated by the same purpose and intent. Residency, for the purpose of taxation, has for its object and purpose the collection of tax revenue. Residency is integrated into tax treaties to ensure both that double taxation is avoided and that tax is not avoided by a taxpayer by claiming to be resident in the opposite country. Similarly, the Income Tax Act jurisprudence is focused on distinguishing residents from sojourners from visitors. The Citizenship Act on the other hand has, for its object, ensuring that the individual who is granted citizenship understands core elements of Canadian social and political institutions, traditions and values.
16 In Koo (Re), [1993] 1 F.C. 286, Reed J. was faced with a similar set of facts as presented in Papadogiorgakis. An applicant had been refused citizenship on account of having not met the residency requirement under a quantitative computation. While Reed J. did not allow the appeal, she outlined, in obiter, what has come to be known as the six-factor Koo Re test. This test constitutes a qualitative assessment of an applicant's Canadian residency to determine whether the citizenship applicant "regularly, normally or customarily lives" in Canada. However, Reed J. did not consider any one of these factors as determinative. Indeed, she held that these six factors were "[q]uestions that can be asked which assist in such a determination of residency..." Koo Re, para 10. This case would later come to be known for establishing the so-called "regularly, normally or customarily lives" test and the second line of reasoning.
17 The third test, referred to as the quantitative test, was articulated in Re Pourghasemi. In that case Muldoon J. rejected the qualitative assessments of residency of Thurlow ACJ and Reed J. in Papadogiorgakis and Koo (Re). Instead he held that:
• It is clear that the purpose of para. 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized." This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples -- in a word wherever one can meet and converse with Canadians -- during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized.
18 Muldoon J. adopted a purposive interpretation of the Act, finding that the three year residency requirement mandated in subsection 5(1)(c) required an applicant for citizenship to have accumulated 1,095 days of residency through physical presence in Canada. At paragraph 6 he observed:
• So those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves. It is not something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else.
19 Re Pourghasemi would later come to be known for establishing the so-called physical presence test as the third line of reasoning with respect to the three year residency requirement.
The Choice of Test
20 In Lam v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 410 Justice Allan Lutfy (now Chief Justice) considered the propriety of applying one line of reasoning in a citizenship appeal to the exclusion of the others. Chief Justice Lutfy meticulously addressed a number of issues with respect to the Act in determining the propriety of a Citizenship Judge's choice of residency tests; and, at paragraph 14, held:
• Subsection 14(6) of the Act is intended to preclude any appeal from the decision of the Federal Court - Trial Division. As a result, the Court of Appeal has not been called upon to resolve this conflicting case law. Judges of the Trial Division have not been fettered in expressing their own view. In my opinion, it is open to the citizenship judge to adopt either one of the conflicting schools in this Court and, if the facts of the case were properly applied to the principles of the chosen approach, the decision of the citizenship judge would not be wrong. Until now, Federal Court trial judges, presiding over the de novo hearings, have generally felt free to substitute their view of the residency requirement for the one expressed in the decision under appeal. The divergence of views, both in this Court and among citizenship judges, has brought uncertainty to the administration of justice in these matters.
21 Chief Justice Lutfy's caution about the deleterious impact of conflicting interpretations on the administration of justice remains valid and accurate to this day.
22 Justice James O'Reilly also placed an important nuance on the relationship between the three tests. In Nandre, above. O'Reilly J. held, at paragraph 21:
• 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.
23 While Justice O'Reilly approved the qualitative test, it is clear from his careful language that physical residency was the primary criteria, particularly given that the Court is being asked to accept that a person outside Canada is nonetheless resident in Canada.
24 In Canada (Minister of Citizenship and Immigration) v. Takla, 2009 FC 1120, para 43, Mainville J. (now of the Federal Court of Appeal) followed the qualitative reasoning of Papadogiorgakis and Koo Re and described the Koo-inspired jurisprudence as the dominant test. However, Mainville J. did not reject the Re Pourghasemi jurisprudence. Indeed, he held the physical presence test to be most consistent with the language of the statute.
25 In my view, comity, while highly desirable, does not provide a basis for departing from a conclusion as to the intention of Parliament as expressed in a statute: see to the same effect the decisions of Justice Johanne Gauthier in Alinaghizadeh v. Canada (Citizenship and Immigration), 2011 FC 332, Justice Judith Snider in Sotade v. Canada (Citizenship and Immigration), 2011 FC 301 and Justice Richard Mosley in Hao v. The Minister of Citizenship and Immigration, 2011 FC 46.
26 I conclude therefore, that the Citizenship Judge adopted and correctly applied a legally accepted test to the facts as found. Consistent with Lam this is sufficient to dispose of this appeal. It is however, also my view that the test of physical presence is the correct interpretation of the residency provision, and that decisions by Citizenship Court judges on this issue should be reviewed on the standard of correctness.
The Interpretation of the Citizenship Act - Literal, Purposive and Contextual Reading
27 It is in this context useful to return to the first principles of statutory interpretation. The residence provision found in subsection 5(1)(c) of the Act cannot be read in isolation from the surrounding words. It must be read as a whole. In other words, a purposive, contextual and harmonious interpretation should be given to the legislative provision: Rizzo & Rizzo Shoes Ltd., Re [1998] 1 S.C.R. 27, para 21. Again, the provision states:
• 5. (1) The Minister shall grant citizenship to any person who
• ...
• (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner... [Emphasis added]
* * *
• 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
• ...
• c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante... [Notre soulignement]
28 This is precisely what Justice Marc Nadon (now of the Court of Appeal) did in Chen v. Canada (Minister of Citizenship & Immigration), 2001 FCT 1229. In Chen, Justice Nadon was faced with the question of which was the correct test for a citizenship judge to apply. He held that it was Pourgahsemi and rejected both Papadogiorgakis and Koo Re as not being correct tests, noting:
• That provision exacts that the applicant must have "within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada ..." Parliament introduces an element of emphasis into the statutory text by enacting "... at least three years of residence in Canada ..." Those emphasized words are unnecessary, except for emphasis. The appellant accumulated less than one year, before the date of his application for citizenship. In drawing a purposive interpretation of the statutory language it should be asked: Why did Parliament prescribe at least 3 years of Canadian residence in the 4 years immediately before applying for citizenship?
• It is clear that the purpose of s. 5(1)(c) [of the Act] is to insure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized".
29 Nadon J.'s analysis of the statute is compelling. 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?
35 The conclusion that residency means physical presence, raises, in turn the final question of the standard of review applicable to the definition of residency. In my view, the test is that of correctness.
Standard of Review
36 The interpretation of a statutory provision, as opposed to its application is, generally speaking, a question of law. While it is true that the courts have carved out an exception to the correctness standard in the interpretation of statutes for specialized tribunals interpreting their home statute, this exception does not apply in the context of the discrete question of the interpretation of the definition of residency. However, just as judicial comity does not constitute a basis for departing from statutory language, the deference accorded specialized administrative tribunals under the doctrine of standard of review cannot be used to circumnavigate what has otherwise been found to be the intention of Parliament. Standard of review is, at its core, an aspect of and exercise in, statutory interpretation, not a free-standing or independent authority to depart from the intention of Parliament expressed in legislation.
37 The most recent statement of this principle is by the SCC in Smith v. Alliance Pipeline Ltd., 2011 SCC 7, where the Court noted that the standard of reasonableness is based on the idea that there may be multiple valid interpretations of a statutory provision and that there is nothing unprincipled with the notion that questions of law, not central to the legal system, could be settled within the framework of the reasonableness standard.
38 Smith, and its predecessors, direct the focus on the nature of the question before the court and whether it can be characterized as a question of broad general importance to the legal system. The question of citizenship is a question of that nature. Who becomes a citizen is of importance not just to the prospective citizens, but to existing citizens as well. All Canadians have an interest in the issue. The legal concept of citizenship is integral to the operation of dozens of federal and provincial statutes, many of which govern access to important social programs, permits or licenses and to conduct or own businesses, or govern access to income security or income support programs. Citizenship has been described by the SCC as "...a very special status that not only incorporates rights and duties but serves a highly important symbolic function as a badge identifying people as members of the Canadian polity." Law Society British Columbia v. Andrews [1989] 1 S.C.R. 143 at para 78.
39 Second, the context within which the decision is made is an important criteria and that context includes the nature of the decision maker. Those tribunals to whom deference has been accorded in the interpretation of specialized legal terms, generally speaking, are engaged in policy based questions and are supported by large, permanent staff which are seeking, in the context of their constituent statute, to cope with evolving factual, policy, economic and social factors. There are, in the context of the question of the definition of residency, distinctions between a Citizenship Court judge hearing an application for citizenship and the Canadian Radio-television and Telecommunications Commission (CRTC) or the National Energy Board (NEB) in interpreting its legislation. If we harken back to Baker v. Canada (Minister of Citizenship and Immigration [1999] 2 S.C.R. 817, which remains instructive to this extent, three of the four key criteria indicative of deference - a privative clause, the existence of specialized knowledge and poly-centric issues - are also absent here.
40 In Smith, the SCC also noted that the statutory language and the absence of any right of appeal reflected a clear intention by Parliament to make the arbitration committee the sole decision maker. The NEB, as an administrative tribunal, charged with managing the interface between economic, social, environmental concerns in a legal framework, stands in contrast in function to that of the Citizenship Court. Moreover, the decision in question was that of an ad hoc arbitration committee, and the interpretation it reached accorded with the plain words of the statute, its legislative history, its evident purpose and its statutory context. It was a case about the application of the law, not its definition.
41 It will be contended, in opposition, that the SCC decision in Smith makes clear that our system of law accommodates conflicting interpretations of the same statutory provision, and that the reasoning in this case, is revisionist. But Smith is markedly different. It is important to note that in Smith, the ad hoc committee was interpreting subsection 99(1) of the National Energy Board Act (R.S.C., 1985, c. N-7) (NEBA) regarding awards for costs attendant upon expropriation hearings. The Court noted that awards for costs are "invariably fact sensitive and generally discretionary." The grant of citizenship, in contrast, is far removed from an award of costs, both in its substance and consequence. Further, the arbitration committees were ad hoc and not bound by precedent. As a general proposition, arbitral awards are not considered binding or precendential: see for example, decisions of arbitral panels under the London Court of Arbitration, the International Centre for Settlement of Investment Disputes (ICSID) or the North American Free Trade Agreement (NAFTA) Chapter 11. Smith and the issues of the award of costs for an expropriation hearing, thus stand far removed from whether citizenship should be granted.
42 In assessing whether the question is of importance to the system as a whole, the distinction between the nature of the rights or legal interests involved is critical. As Justice Kathryn Feldman said in Taub v. Investment Dealers Association of Canada, 2009 ONCA 628, para 67:
• I agree with Juriansz J.A. that it accords with the rule of law that a public statute that applies equally to all affected citizens should have a universally accepted interpretation. It follows that where a statutory tribunal has interpreted its home statute as a matter of law, the fact that on appeal or judicial review the standard of review is reasonableness does not change the precedential effect of the decision for the tribunal. Whether a court has had the opportunity to declare the decision to be correct according to judicially applicable principles should not affect its precedential status.
43 It is, in this context, useful to look at what Justice Russell Juriansz said in Abdoulrab v. Ontario (Labour Relations Board), 2009 ONCA 491, para 48:
• From a common sense perspective, it is difficult to accept that two truly contradictory interpretations of the same statutory provision can both be upheld as reasonable. If two interpretations of the same statutory provision are truly contradictory, it is difficult to envisage that they both would fall within the range of acceptable outcomes. More importantly, it seems incompatible with the rule of law that two contradictory interpretations of the same provision of a public statute, by which citizens order their lives, could both be accepted as reasonable. In such circumstances, the Director suggests, the reviewing court must consider both competing lines of authority and decide which one is reasonable.
The Citizenship Act is very much a public statute.
44 In Canada (Attorney General) v. Mowat, 2009 FCA 309, the Federal Court of Appeal (FCA) considered these principles in the context of conflicting decisions as to the authority of the Canadian Human Rights Tribunal to award costs. The FCA determined that the Federal Court judge had erred in adopting reasonableness - as opposed to correctness - as the standard of review. The FCA characterized the question as one of public interest and general importance and hence outside of the specialized area of expertise. After referring to the reasons of the Ontario Court of Appeal noted above, Justice Carolyn Layden-Stevenson concluded:
• There is much to be said for the argument that where there are two conflicting lines of authority interpreting the same statutory provision, even if each on its own could be found to be reasonable, it would not be reasonable for a court to uphold both.
45 To the same effect, Justice Deschamps writing in Smith, while concurring in the result, cautions against an overly formalistic approach of the deference to administrative decision making. Deschamps J. notes that deference on legal questions is exceptional and arises only in consequences of clear legislative intent.
• Dunsmuir retained the multi-pronged standard of review analysis, but it also attempted to simplify the analysis by articulating "categories of question" to resolve the standard of review on the basis of precedent. In my view, the jurisprudence makes clear that with respect to an administrative decision-maker's interpretation of its home statute, relative expertise or experience of the decision-maker is critical and cannot be overlooked if deference is to be categorically accorded. As noted by the majority in Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28, [2003] 1 S.C.R. 476, at para. 16, "[d]eference to the decision maker is called for only when it is in some way more expert than the court and the question under consideration is one that falls within the scope of its greater expertise" (citing Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at para. 28).
• According deference to an administrative decision-maker merely for the reason that it is interpreting its home statute and no constitutional question, centrally important legal question, or question about the limits of its authority vis-à-vis another tribunal is incomplete. Such a position is purely formalistic and loses sight of the rationale for according deference to an interpretation of the home statute that has developed in the jurisprudence including Dunsmuir, namely, that the legislature has manifested an intent to draw on the relative expertise or experience of the administrative body to resolve the interpretative issues before it. Such intent cannot simply be presumed from the creation of an administrative body by the legislature.
46 There are other points of distinction between the issues before this Court and those in Smith. Citizenship Court judges are unquestionably better situated as triers of fact and assessors of credibility. They are better situated to make the factual determination as to whether the threshold question of the existence of "a residence", has been established. They are unquestionably better situated to determine whether exigent circumstances exist and to make recommendations under subsection 5(4) of the Act. These are matters of proof requiring the production and assessment of evidence and the hearing of testimony. It is in this regard that deference is properly accorded.
47 There are also other reasons, rooted in broader questions of legal policy, why the question of residency for the purposes of citizenship does not fall within the exceptional category of cases where legal questions are not assessed against a correctness standard.
48 First, there are no known criteria by which the exercise of discretion to choose between three tests of residency is exercised or governed. It has been said that the choice of test must be reasonable, but that leaves unanswered the question of what is and what is not, an unreasonable choice. It has been said, in some cases, that the only reasonable test is the test that is most favorable to the applicant, which, if correct, means that the Citizenship Court judge has in effect, no discretion at all. The absence of criteria governing the exercise of discretion in the choice of legal test is problematic, as it leads to ad hoc decision making and the exercise of discretion unbounded by law.
49 This, in turn, leads to the second legal policy concern. The discretion to choose one of three legal tests is incompatible with the principle that the law is capable of being discerned. It is integral to the rule of law that the law must be knowable. As it currently stands, lawyers, when asked by their client whether they can be become a citizen can only say that it depends on what test is applied. The supplementary question becomes, of course, well, what determines which test is applied, to which the answer is that it depends on the judge. The very question of the law, and not its application, is in doubt. The latter, the application of law, is the raw material of trials and motions, barristers and judges. But the law itself should be discernible and not subject to the luck or lack of luck depending which judge is assigned to hear the case. The law must be accessible, and so far as possible, intelligible, clear and predictable. The late Lord Chief Justice Bingham, in his book The Rule of Law (England: Penguin Group, 2010, at 39) points to a succinct statement by Lord Diplock:
• Elementary justice or, to use the concept often cited by the European Court [of Justice], the need for legal certainty demands that the rules by which the citizen is to be bound should be ascertainable by him (or more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly available.
50 The law is normative, that is to say that a law must be formulated with sufficient precision to enable a citizen to regulate his conduct, and the content of the law should be accessible to the public. To move from the principle to the pragmatic, how then, does a putative citizen know whether they can leave Canada or not leave Canada in the period of their permanent residency. The answer is that, under the current state of the law, they do not, and cannot know.
51 Third, identification of the standard of review is, at its core, an exercise in statutory interpretation. Where the intention of Parliament is clear, as it is here, that intention cannot be circumvented by the choice of a deferential standard of review.
52 In my view therefore, the interpretation of the residency provision of the Citizenship Act is subject to the standard of correctness and that residency means physical presence in Canada.
53 It is my opinion that Re Pourghasemi is the interpretation that reflects the true meaning, intent and spirit of subsection 5(1)(c) of the Act: Rizzo, paras 22 and 41. For this reason it cannot be said that the Citizenship Judge erred in applying the Re Pourghasemi test. Furthermore, the Citizenship Judge correctly applied the Re Pourghasemi test in determining that a shortfall of 771 days prevented a finding that 1,095 days of physical presence in Canada had been accumulated.
54 The appeal is dismissed.
55 There is no order as to costs.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the appeal is hereby dismissed. There is no order as to costs.
RENNIE J.
Martinez-Caro v. Canada (Minister of Citizenship and Immigration)
Between
Fernando Martinez-Caro, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 881
2011 FC 640
Docket T-1424-10
Federal Court
Toronto, Ontario
Rennie J.
Heard: January 18, 2011.
Judgment: June 14, 2011.
(55 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 RENNIE J.:-- The applicant appeals a Citizenship Court decision refusing his application for Canadian citizenship. His appeal is brought pursuant to subsection 14(5) of the Citizenship Act (R.S., 1985, c. C-29) (the Act), and is governed by the Federal Courts Rules pertaining to applications; hence his status as applicant and the Minister's as respondent. The Act does not provide for further appeals following a disposition by this Court. For the reasons that follow, this appeal is dismissed.
Facts
2 The applicant is an executive at InMet, a Canadian mining company. Prior to that, he was employed by Ferrovial Agroman Canada Inc., a subsidiary of Ferrovial Agroman S.A., an international construction company. In 1999, while in the employ of Ferrovial, the applicant and his family moved to Canada. They applied for and were granted permanent residency status. They later applied for and were granted citizenship - all except for the applicant. The applicant's wife and his two children are now Canadian citizens. The applicant is not.
3 In his position at Ferrovial Agroman Canada Inc. the applicant was often required to travel abroad. The Citizenship Judge found that the applicant made the change in employment from Ferrovial to InMet in order to reduce the amount of travel and time away from his family.
4 The Citizenship Judge applied the decision of this Court in Re Pourghasemi, [1993] F.C.J. No. 232 in arriving at his decision not to grant the applicant Canadian citizenship. The Citizenship Judge found that the applicant fell short of the 1,095 days required under the Act in order to qualify for citizenship. The applicant had only 689 days of physical presence in Canada. He had been outside Canada for 771 days.
5 This Court has been asked to determine whether the Citizenship Court erred when it interpreted the definition of residency in subsection 5(1)(c) of the Act to mean physical presence in Canada. The provision reads:
• 5. (1) The Minister shall grant citizenship to any person who
• ...
• (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner:
• (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and
• (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;
...
[Emphasis added]
* * *
• 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois:
• ...
• c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante :
• (i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent,
• (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent;
...
[Notre soulignement]
6 In my view, the Citizenship Court did not err.
The Law
7 Since the Act received Royal Assent in 1977, three lines of reasoning have emerged with respect to the residency requirement found in subsection 5(1)(c) of the Act: the centralized mode of living test; the so-called six-factor Koo (Re) test, which is focused on where the applicant regularly, normally or customarily lives, and the physical presence test, which is focused on whether the applicant's physical presence in Canada meets or exceeds 1,095 days. Justice Sean Harrington succinctly summarised the three schools in Canada (Minister of Citizenship & Immigration) v Salim, 2010 FC 975 at para 1:
• According to one school of thought, residence means physical presence. Two others state that in certain circumstances a person satisfies the requirement if here in spirit, but not in body.
• ...
• For over 30 years, we have been plagued with three residency tests or, as some would have it, two tests, the second having two branches.
8 The divergent jurisprudence arises, in part, from the absence of a definition of residence in the Act but also, as Justice James O'Reilly observed in Canada (Minister of Citizenship & Immigration) v. Nandre, 2003 FCT 650, para 10:
• ...it results in part from the fact that citizenship appeals go no further than the Trial Division of the Federal Court. The unifying and standardizing role of the Federal Court of Appeal is absent in these matters. Without binding authority, individual judges of this Court must determine whether the Act is capable of more than one interpretation and, if so, whether it should be left to citizenship judges to choose one.
9 This Court has also held that determining whether the residency requirement has been met consists of a two stage inquiry. The first stage contemplates whether the applicant has established a physical residence within Canada. If, and only if this requirement has been met does one proceed to the second stage of the inquiry which contemplates whether the applicant has accumulated 1,095 days (the equivalent of three years) of residency in Canada: Goudimenko v. Canada (Minister of Citizenship & Immigration), 2002 FCT 447. Failure to find that there is a residence in Canada ends the matter: Abbas v. Canada (Citizenship and Immigration), 2011 FC 145. It is at the second stage of the inquiry where the Court has diverged with respect to interpreting the three year residency requirement.
10 Re Papadogiorgakis, [1978] 2 F.C. 208 was one of the first cases of this Court to address subsection 5(c)(1) [subsection 5(b) as it then was] of the Act. In that case, the applicant had immigrated to Canada from Crete. He attended university in Nova Scotia and established residency with some friends. However, Papadogiorgakis shortly thereafter went to university in the United States, occasionally making trips back to Canada. He divided his place of physical presence between the two countries.
11 The Citizenship Judge refused Papadogiorgakis's application on the basis that he had not accumulated three years of residency in the four years immediately preceding his application. On appeal, Associate Chief Justice Thurlow held that even though Papadogiorgakis had not accumulated 1,095 days of residence in Canada, because he had "centralized his mode of living in Canada" the three year residency requirement had indeed been met: Papadogiorgakis, para 17. Thurlow ACJ allowed the appeal and found that Papadogiorgakis had met the residency requirement.
12 Thurlow ACJ looked to existing jurisprudence to best understand what could be meant by residence because the term was left undefined in the Act. He first considered Blaha v. Minister of Citizenship & Immigration, [1971] FC 521, wherein Pratte J. interpreted residency in the Act's predecessor; the Canadian Citizenship Act (R.S.C. 1970, c. C-19.). Pratte J. likened residence to "place of domicile," holding:
• In my opinion a person is resident in Canada within the meaning of the Canadian Citizenship Act only if he is physically present (at least usually) on Canadian territory. I feel that this interpretation is in keeping with the spirit of the Act, which seems to require of the foreigner wishing to acquire Canadian citizenship, not only that he possess certain civic and moral qualifications, and intends to reside in Canada on a permanent basis, but also that he has actually lived in Canada for an appreciable time. Parliament wishes by this means to ensure that Canadian citizenship is granted only to persons who have shown they are capable of becoming a part of our society. (para.11)
13 Rejecting that opinion, Thurlow ACJ turned to the Supreme Court of Canada's (SCC) articulation of residence under the Income Tax Act (1985, c. 1 (5th Supp.)). In Thomson v. Minister of National Revenue, [1946] S.C.R. 209, the SCC held that:
• ... in all cases residence...is chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question.
14 It was upon this reasoning that Thurlow ACJ arrived at his decision that Papadogiorgakis had nonetheless met the residency requirement even though he had only 79 days of physical presence in Canada. The Papadogiorgakis case would later come to be known as the "centralized mode of living test" and one of the lines of reasoning with respect to the three year residency requirement. It was at that point that the jurisprudence began to diverge.
15 In my view, the principles that guide the interpretation of the residency provisions of the Income Tax Act bear little relation to those that guide the interpretation of residency for the purpose of citizenship. The statutes are not in pari materia, nor can it be said that Parliament was motivated by the same purpose and intent. Residency, for the purpose of taxation, has for its object and purpose the collection of tax revenue. Residency is integrated into tax treaties to ensure both that double taxation is avoided and that tax is not avoided by a taxpayer by claiming to be resident in the opposite country. Similarly, the Income Tax Act jurisprudence is focused on distinguishing residents from sojourners from visitors. The Citizenship Act on the other hand has, for its object, ensuring that the individual who is granted citizenship understands core elements of Canadian social and political institutions, traditions and values.
16 In Koo (Re), [1993] 1 F.C. 286, Reed J. was faced with a similar set of facts as presented in Papadogiorgakis. An applicant had been refused citizenship on account of having not met the residency requirement under a quantitative computation. While Reed J. did not allow the appeal, she outlined, in obiter, what has come to be known as the six-factor Koo Re test. This test constitutes a qualitative assessment of an applicant's Canadian residency to determine whether the citizenship applicant "regularly, normally or customarily lives" in Canada. However, Reed J. did not consider any one of these factors as determinative. Indeed, she held that these six factors were "[q]uestions that can be asked which assist in such a determination of residency..." Koo Re, para 10. This case would later come to be known for establishing the so-called "regularly, normally or customarily lives" test and the second line of reasoning.
17 The third test, referred to as the quantitative test, was articulated in Re Pourghasemi. In that case Muldoon J. rejected the qualitative assessments of residency of Thurlow ACJ and Reed J. in Papadogiorgakis and Koo (Re). Instead he held that:
• It is clear that the purpose of para. 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized." This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples -- in a word wherever one can meet and converse with Canadians -- during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized.
18 Muldoon J. adopted a purposive interpretation of the Act, finding that the three year residency requirement mandated in subsection 5(1)(c) required an applicant for citizenship to have accumulated 1,095 days of residency through physical presence in Canada. At paragraph 6 he observed:
• So those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves. It is not something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else.
19 Re Pourghasemi would later come to be known for establishing the so-called physical presence test as the third line of reasoning with respect to the three year residency requirement.
The Choice of Test
20 In Lam v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 410 Justice Allan Lutfy (now Chief Justice) considered the propriety of applying one line of reasoning in a citizenship appeal to the exclusion of the others. Chief Justice Lutfy meticulously addressed a number of issues with respect to the Act in determining the propriety of a Citizenship Judge's choice of residency tests; and, at paragraph 14, held:
• Subsection 14(6) of the Act is intended to preclude any appeal from the decision of the Federal Court - Trial Division. As a result, the Court of Appeal has not been called upon to resolve this conflicting case law. Judges of the Trial Division have not been fettered in expressing their own view. In my opinion, it is open to the citizenship judge to adopt either one of the conflicting schools in this Court and, if the facts of the case were properly applied to the principles of the chosen approach, the decision of the citizenship judge would not be wrong. Until now, Federal Court trial judges, presiding over the de novo hearings, have generally felt free to substitute their view of the residency requirement for the one expressed in the decision under appeal. The divergence of views, both in this Court and among citizenship judges, has brought uncertainty to the administration of justice in these matters.
21 Chief Justice Lutfy's caution about the deleterious impact of conflicting interpretations on the administration of justice remains valid and accurate to this day.
22 Justice James O'Reilly also placed an important nuance on the relationship between the three tests. In Nandre, above. O'Reilly J. held, at paragraph 21:
• 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.
23 While Justice O'Reilly approved the qualitative test, it is clear from his careful language that physical residency was the primary criteria, particularly given that the Court is being asked to accept that a person outside Canada is nonetheless resident in Canada.
24 In Canada (Minister of Citizenship and Immigration) v. Takla, 2009 FC 1120, para 43, Mainville J. (now of the Federal Court of Appeal) followed the qualitative reasoning of Papadogiorgakis and Koo Re and described the Koo-inspired jurisprudence as the dominant test. However, Mainville J. did not reject the Re Pourghasemi jurisprudence. Indeed, he held the physical presence test to be most consistent with the language of the statute.
25 In my view, comity, while highly desirable, does not provide a basis for departing from a conclusion as to the intention of Parliament as expressed in a statute: see to the same effect the decisions of Justice Johanne Gauthier in Alinaghizadeh v. Canada (Citizenship and Immigration), 2011 FC 332, Justice Judith Snider in Sotade v. Canada (Citizenship and Immigration), 2011 FC 301 and Justice Richard Mosley in Hao v. The Minister of Citizenship and Immigration, 2011 FC 46.
26 I conclude therefore, that the Citizenship Judge adopted and correctly applied a legally accepted test to the facts as found. Consistent with Lam this is sufficient to dispose of this appeal. It is however, also my view that the test of physical presence is the correct interpretation of the residency provision, and that decisions by Citizenship Court judges on this issue should be reviewed on the standard of correctness.
The Interpretation of the Citizenship Act - Literal, Purposive and Contextual Reading
27 It is in this context useful to return to the first principles of statutory interpretation. The residence provision found in subsection 5(1)(c) of the Act cannot be read in isolation from the surrounding words. It must be read as a whole. In other words, a purposive, contextual and harmonious interpretation should be given to the legislative provision: Rizzo & Rizzo Shoes Ltd., Re [1998] 1 S.C.R. 27, para 21. Again, the provision states:
• 5. (1) The Minister shall grant citizenship to any person who
• ...
• (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner... [Emphasis added]
* * *
• 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
• ...
• c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante... [Notre soulignement]
28 This is precisely what Justice Marc Nadon (now of the Court of Appeal) did in Chen v. Canada (Minister of Citizenship & Immigration), 2001 FCT 1229. In Chen, Justice Nadon was faced with the question of which was the correct test for a citizenship judge to apply. He held that it was Pourgahsemi and rejected both Papadogiorgakis and Koo Re as not being correct tests, noting:
• That provision exacts that the applicant must have "within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada ..." Parliament introduces an element of emphasis into the statutory text by enacting "... at least three years of residence in Canada ..." Those emphasized words are unnecessary, except for emphasis. The appellant accumulated less than one year, before the date of his application for citizenship. In drawing a purposive interpretation of the statutory language it should be asked: Why did Parliament prescribe at least 3 years of Canadian residence in the 4 years immediately before applying for citizenship?
• It is clear that the purpose of s. 5(1)(c) [of the Act] is to insure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized".
29 Nadon J.'s analysis of the statute is compelling. 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?
35 The conclusion that residency means physical presence, raises, in turn the final question of the standard of review applicable to the definition of residency. In my view, the test is that of correctness.
Standard of Review
36 The interpretation of a statutory provision, as opposed to its application is, generally speaking, a question of law. While it is true that the courts have carved out an exception to the correctness standard in the interpretation of statutes for specialized tribunals interpreting their home statute, this exception does not apply in the context of the discrete question of the interpretation of the definition of residency. However, just as judicial comity does not constitute a basis for departing from statutory language, the deference accorded specialized administrative tribunals under the doctrine of standard of review cannot be used to circumnavigate what has otherwise been found to be the intention of Parliament. Standard of review is, at its core, an aspect of and exercise in, statutory interpretation, not a free-standing or independent authority to depart from the intention of Parliament expressed in legislation.
37 The most recent statement of this principle is by the SCC in Smith v. Alliance Pipeline Ltd., 2011 SCC 7, where the Court noted that the standard of reasonableness is based on the idea that there may be multiple valid interpretations of a statutory provision and that there is nothing unprincipled with the notion that questions of law, not central to the legal system, could be settled within the framework of the reasonableness standard.
38 Smith, and its predecessors, direct the focus on the nature of the question before the court and whether it can be characterized as a question of broad general importance to the legal system. The question of citizenship is a question of that nature. Who becomes a citizen is of importance not just to the prospective citizens, but to existing citizens as well. All Canadians have an interest in the issue. The legal concept of citizenship is integral to the operation of dozens of federal and provincial statutes, many of which govern access to important social programs, permits or licenses and to conduct or own businesses, or govern access to income security or income support programs. Citizenship has been described by the SCC as "...a very special status that not only incorporates rights and duties but serves a highly important symbolic function as a badge identifying people as members of the Canadian polity." Law Society British Columbia v. Andrews [1989] 1 S.C.R. 143 at para 78.
39 Second, the context within which the decision is made is an important criteria and that context includes the nature of the decision maker. Those tribunals to whom deference has been accorded in the interpretation of specialized legal terms, generally speaking, are engaged in policy based questions and are supported by large, permanent staff which are seeking, in the context of their constituent statute, to cope with evolving factual, policy, economic and social factors. There are, in the context of the question of the definition of residency, distinctions between a Citizenship Court judge hearing an application for citizenship and the Canadian Radio-television and Telecommunications Commission (CRTC) or the National Energy Board (NEB) in interpreting its legislation. If we harken back to Baker v. Canada (Minister of Citizenship and Immigration [1999] 2 S.C.R. 817, which remains instructive to this extent, three of the four key criteria indicative of deference - a privative clause, the existence of specialized knowledge and poly-centric issues - are also absent here.
40 In Smith, the SCC also noted that the statutory language and the absence of any right of appeal reflected a clear intention by Parliament to make the arbitration committee the sole decision maker. The NEB, as an administrative tribunal, charged with managing the interface between economic, social, environmental concerns in a legal framework, stands in contrast in function to that of the Citizenship Court. Moreover, the decision in question was that of an ad hoc arbitration committee, and the interpretation it reached accorded with the plain words of the statute, its legislative history, its evident purpose and its statutory context. It was a case about the application of the law, not its definition.
41 It will be contended, in opposition, that the SCC decision in Smith makes clear that our system of law accommodates conflicting interpretations of the same statutory provision, and that the reasoning in this case, is revisionist. But Smith is markedly different. It is important to note that in Smith, the ad hoc committee was interpreting subsection 99(1) of the National Energy Board Act (R.S.C., 1985, c. N-7) (NEBA) regarding awards for costs attendant upon expropriation hearings. The Court noted that awards for costs are "invariably fact sensitive and generally discretionary." The grant of citizenship, in contrast, is far removed from an award of costs, both in its substance and consequence. Further, the arbitration committees were ad hoc and not bound by precedent. As a general proposition, arbitral awards are not considered binding or precendential: see for example, decisions of arbitral panels under the London Court of Arbitration, the International Centre for Settlement of Investment Disputes (ICSID) or the North American Free Trade Agreement (NAFTA) Chapter 11. Smith and the issues of the award of costs for an expropriation hearing, thus stand far removed from whether citizenship should be granted.
42 In assessing whether the question is of importance to the system as a whole, the distinction between the nature of the rights or legal interests involved is critical. As Justice Kathryn Feldman said in Taub v. Investment Dealers Association of Canada, 2009 ONCA 628, para 67:
• I agree with Juriansz J.A. that it accords with the rule of law that a public statute that applies equally to all affected citizens should have a universally accepted interpretation. It follows that where a statutory tribunal has interpreted its home statute as a matter of law, the fact that on appeal or judicial review the standard of review is reasonableness does not change the precedential effect of the decision for the tribunal. Whether a court has had the opportunity to declare the decision to be correct according to judicially applicable principles should not affect its precedential status.
43 It is, in this context, useful to look at what Justice Russell Juriansz said in Abdoulrab v. Ontario (Labour Relations Board), 2009 ONCA 491, para 48:
• From a common sense perspective, it is difficult to accept that two truly contradictory interpretations of the same statutory provision can both be upheld as reasonable. If two interpretations of the same statutory provision are truly contradictory, it is difficult to envisage that they both would fall within the range of acceptable outcomes. More importantly, it seems incompatible with the rule of law that two contradictory interpretations of the same provision of a public statute, by which citizens order their lives, could both be accepted as reasonable. In such circumstances, the Director suggests, the reviewing court must consider both competing lines of authority and decide which one is reasonable.
The Citizenship Act is very much a public statute.
44 In Canada (Attorney General) v. Mowat, 2009 FCA 309, the Federal Court of Appeal (FCA) considered these principles in the context of conflicting decisions as to the authority of the Canadian Human Rights Tribunal to award costs. The FCA determined that the Federal Court judge had erred in adopting reasonableness - as opposed to correctness - as the standard of review. The FCA characterized the question as one of public interest and general importance and hence outside of the specialized area of expertise. After referring to the reasons of the Ontario Court of Appeal noted above, Justice Carolyn Layden-Stevenson concluded:
• There is much to be said for the argument that where there are two conflicting lines of authority interpreting the same statutory provision, even if each on its own could be found to be reasonable, it would not be reasonable for a court to uphold both.
45 To the same effect, Justice Deschamps writing in Smith, while concurring in the result, cautions against an overly formalistic approach of the deference to administrative decision making. Deschamps J. notes that deference on legal questions is exceptional and arises only in consequences of clear legislative intent.
• Dunsmuir retained the multi-pronged standard of review analysis, but it also attempted to simplify the analysis by articulating "categories of question" to resolve the standard of review on the basis of precedent. In my view, the jurisprudence makes clear that with respect to an administrative decision-maker's interpretation of its home statute, relative expertise or experience of the decision-maker is critical and cannot be overlooked if deference is to be categorically accorded. As noted by the majority in Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28, [2003] 1 S.C.R. 476, at para. 16, "[d]eference to the decision maker is called for only when it is in some way more expert than the court and the question under consideration is one that falls within the scope of its greater expertise" (citing Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at para. 28).
• According deference to an administrative decision-maker merely for the reason that it is interpreting its home statute and no constitutional question, centrally important legal question, or question about the limits of its authority vis-à-vis another tribunal is incomplete. Such a position is purely formalistic and loses sight of the rationale for according deference to an interpretation of the home statute that has developed in the jurisprudence including Dunsmuir, namely, that the legislature has manifested an intent to draw on the relative expertise or experience of the administrative body to resolve the interpretative issues before it. Such intent cannot simply be presumed from the creation of an administrative body by the legislature.
46 There are other points of distinction between the issues before this Court and those in Smith. Citizenship Court judges are unquestionably better situated as triers of fact and assessors of credibility. They are better situated to make the factual determination as to whether the threshold question of the existence of "a residence", has been established. They are unquestionably better situated to determine whether exigent circumstances exist and to make recommendations under subsection 5(4) of the Act. These are matters of proof requiring the production and assessment of evidence and the hearing of testimony. It is in this regard that deference is properly accorded.
47 There are also other reasons, rooted in broader questions of legal policy, why the question of residency for the purposes of citizenship does not fall within the exceptional category of cases where legal questions are not assessed against a correctness standard.
48 First, there are no known criteria by which the exercise of discretion to choose between three tests of residency is exercised or governed. It has been said that the choice of test must be reasonable, but that leaves unanswered the question of what is and what is not, an unreasonable choice. It has been said, in some cases, that the only reasonable test is the test that is most favorable to the applicant, which, if correct, means that the Citizenship Court judge has in effect, no discretion at all. The absence of criteria governing the exercise of discretion in the choice of legal test is problematic, as it leads to ad hoc decision making and the exercise of discretion unbounded by law.
49 This, in turn, leads to the second legal policy concern. The discretion to choose one of three legal tests is incompatible with the principle that the law is capable of being discerned. It is integral to the rule of law that the law must be knowable. As it currently stands, lawyers, when asked by their client whether they can be become a citizen can only say that it depends on what test is applied. The supplementary question becomes, of course, well, what determines which test is applied, to which the answer is that it depends on the judge. The very question of the law, and not its application, is in doubt. The latter, the application of law, is the raw material of trials and motions, barristers and judges. But the law itself should be discernible and not subject to the luck or lack of luck depending which judge is assigned to hear the case. The law must be accessible, and so far as possible, intelligible, clear and predictable. The late Lord Chief Justice Bingham, in his book The Rule of Law (England: Penguin Group, 2010, at 39) points to a succinct statement by Lord Diplock:
• Elementary justice or, to use the concept often cited by the European Court [of Justice], the need for legal certainty demands that the rules by which the citizen is to be bound should be ascertainable by him (or more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly available.
50 The law is normative, that is to say that a law must be formulated with sufficient precision to enable a citizen to regulate his conduct, and the content of the law should be accessible to the public. To move from the principle to the pragmatic, how then, does a putative citizen know whether they can leave Canada or not leave Canada in the period of their permanent residency. The answer is that, under the current state of the law, they do not, and cannot know.
51 Third, identification of the standard of review is, at its core, an exercise in statutory interpretation. Where the intention of Parliament is clear, as it is here, that intention cannot be circumvented by the choice of a deferential standard of review.
52 In my view therefore, the interpretation of the residency provision of the Citizenship Act is subject to the standard of correctness and that residency means physical presence in Canada.
53 It is my opinion that Re Pourghasemi is the interpretation that reflects the true meaning, intent and spirit of subsection 5(1)(c) of the Act: Rizzo, paras 22 and 41. For this reason it cannot be said that the Citizenship Judge erred in applying the Re Pourghasemi test. Furthermore, the Citizenship Judge correctly applied the Re Pourghasemi test in determining that a shortfall of 771 days prevented a finding that 1,095 days of physical presence in Canada had been accumulated.
54 The appeal is dismissed.
55 There is no order as to costs.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the appeal is hereby dismissed. There is no order as to costs.
RENNIE J.
STUDY IN CANADA: UK STUDENTS
This article appeared in The Independent newspaper in the UK
Studying in Canada: A welcome to keep you warm through winter - Study Abroad, Student - The Independent
Independent.co.uk
Studying in Canada: A welcome to keep you warm through winter
Plenty of jobs, competitive fees and a great quality of life await in Canada, writes Jessica Moore
Wednesday, 29 June 2011
Among British students, Canada hasn’t ranked highly as a destination for education. Perhaps it’s the distance that makes applicants think twice. Perhaps it’s the cold winters. But it certainly isn’t the quality of education, cost of studying or standard of living.
Canadian degrees, awarded at 90 universities nationwide, are internationally recognised and respected, according to internationalgraduate.net. Their education system offers “strong student support services, small classes and active campus communities”. And, as Canada spends more per capita on its education system than any other country in the world, tuition rates are lower for international students than they are in many other countries.
As for quality of life, Canada was ranked eighth in the UN’s worldwide Human Development Index 2010. Brits are welcome, too. According to Rob Norris, the minister of advanced education, employment and immigration in the province of Saskatchewan, “There’s a spirit of welcome across Canada. We want to make sure that our campuses and communities are increasingly diverse, international and cosmopolitan,” he says.
Saskatchewan puts its money where its mouth is. Norris explains: “We have made record investment of more than C$2.8bn (£1.8bn) in post-secondary education in the past three years. That includes a 3,000 per cent increase in funding for student housing, and new dollars in key areas where we want to be leading in innovation.” Namely, science and engineering, responding to the area’s wealth of natural resources, including arable land, uranium, oil and the mining industry.
Recession is not a word that appears in the Canadian dictionary. Within the province of Saskatchewan alone – an area the size of France – there are currently more than 9,000 job vacancies (saskjobs.ca). “We’re not shy about saying to international students there are career opportunities here,” says Norris. “In Saskatchewan, we’ve just made some improvements to our regional immigration system to allow [post] graduate students to stay for a couple of years [after completing their studies] to enable them to find career opportunities.”
There’s also the graduate retention programme, which enables graduates with honours degrees from Saskatchewan universities to qualify for up to C$20,000 (£12,800) back if they stay and work in the province for seven years.
But that’s jumping ahead. Students contemplating Canada as a destination should first consider fees, which vary greatly. British students pay around C$11,000 (£7,000) a year at the University of Winnipeg in Manitoba, C$18,000 (£11,500) at York University in Toronto, and $24,000 (£15,300) at the University of British Columbia, according to their websites. As for postgraduate study, costs range from $3,780 (£2,412) a year at Memorial University in Newfoundland to $17,500 (£11,039) at the University College of Cape Breton in Nova Scotia.
As for a visa, you shouldn’t need one. A study placement of up to six months is yours for the applying. For longer study, UK nationals need a permit, for which the Canadian High Commission requires you to have been accepted to a university in Canada, and have proof that you can pay for tuition fees and living expenses. It estimates the latter to be around $10,000 (£6,300) per year, plus CA$4,000 (£2,500) for the first dependant and CA$3,000 (£1,900) for each subsequent dependent. You need a clean criminal record and an equally clean bill of health. It takes eight to 10 weeks to process applications, and costs around £75, which is usually non-refundable, regardless of success.
For those applying to study in Quebec, things are a little different. You will need to get a certificate of acceptance from the Quebec government. Visit immigration-quebec.gouv.qc.ca/en/immigrate-settle/students/index.html for more information.
Overall, though, there are few immigration barriers to UK students. Dr George Maslany, from the University of Regina, confirms: “There’s not much red tape. It takes about two months, but usually anyone from Britain who applies for a permit gets it.”
Financial assistance may be available in scholarships and bursaries. These are numerous and most are competitive, awarded on academic merit rather than financial need. But at the Dr David Hannah, associate vice-president of student and enrolment services at the University of Saskatchewan, says: “We have a guaranteed entrance scholarship programme for undergraduate students, which gives them anywhere from C$500 (£320) to C$3,000 (£1,915) for their first year of study, depending on their academic qualifications. They don’t even have to apply for that, it’s automatic.”
Similarly, places on Canadian courses are almost exclusively awarded on academic qualifications. There are some exceptions, for example medicine often has an interview process. Hannah says: “It’s usually based on secondary school performance. With UK students, we typically look for three A-levels of at least D grades. In some courses it might be higher – for business courses, for example, we’re looking for B grades.”
With the strong and long-standing connections between Canada and the UK, students should have little trouble settling in. “We are very respectful of our traditions, including the monarchy and the Commonwealth, which plays a vital role within our culture and community,” explains Norris. “There’s an affinity here that, from the feedback we get from students and scholars from the UK, gives a tremendous feeling of being at home.”
Another plus, for British linguists, may be Canada’s bilingualism: in parts of the country, it is possible to study in either French or English. Most, however, benefit from the lack of language barrier. Maslany jokes “British students don’t have any difficulty as Canadians are devoid of any accent, but UK students have a range of accents. It can take a little while for us to familiarise ourselves with those!”
And the big chill? “The first winter here can take some adjusting,” Hannah admits, “but all of our buildings at the University of Saskatchewan are connected through interior walkways, so you don’t have to spend too much time outside in the cold. In the summer, temperatures top 30C, and from the middle of April until mid October, it’s really very pleasant around here.”
Norris concludes: “The mood in Canada is one of real optimism. We are very student orientated, with universities that are held in high regard. This is a land that’s focused on the future.”
Studying in Canada: A welcome to keep you warm through winter - Study Abroad, Student - The Independent
Independent.co.uk
Studying in Canada: A welcome to keep you warm through winter
Plenty of jobs, competitive fees and a great quality of life await in Canada, writes Jessica Moore
Wednesday, 29 June 2011
Among British students, Canada hasn’t ranked highly as a destination for education. Perhaps it’s the distance that makes applicants think twice. Perhaps it’s the cold winters. But it certainly isn’t the quality of education, cost of studying or standard of living.
Canadian degrees, awarded at 90 universities nationwide, are internationally recognised and respected, according to internationalgraduate.net. Their education system offers “strong student support services, small classes and active campus communities”. And, as Canada spends more per capita on its education system than any other country in the world, tuition rates are lower for international students than they are in many other countries.
As for quality of life, Canada was ranked eighth in the UN’s worldwide Human Development Index 2010. Brits are welcome, too. According to Rob Norris, the minister of advanced education, employment and immigration in the province of Saskatchewan, “There’s a spirit of welcome across Canada. We want to make sure that our campuses and communities are increasingly diverse, international and cosmopolitan,” he says.
Saskatchewan puts its money where its mouth is. Norris explains: “We have made record investment of more than C$2.8bn (£1.8bn) in post-secondary education in the past three years. That includes a 3,000 per cent increase in funding for student housing, and new dollars in key areas where we want to be leading in innovation.” Namely, science and engineering, responding to the area’s wealth of natural resources, including arable land, uranium, oil and the mining industry.
Recession is not a word that appears in the Canadian dictionary. Within the province of Saskatchewan alone – an area the size of France – there are currently more than 9,000 job vacancies (saskjobs.ca). “We’re not shy about saying to international students there are career opportunities here,” says Norris. “In Saskatchewan, we’ve just made some improvements to our regional immigration system to allow [post] graduate students to stay for a couple of years [after completing their studies] to enable them to find career opportunities.”
There’s also the graduate retention programme, which enables graduates with honours degrees from Saskatchewan universities to qualify for up to C$20,000 (£12,800) back if they stay and work in the province for seven years.
But that’s jumping ahead. Students contemplating Canada as a destination should first consider fees, which vary greatly. British students pay around C$11,000 (£7,000) a year at the University of Winnipeg in Manitoba, C$18,000 (£11,500) at York University in Toronto, and $24,000 (£15,300) at the University of British Columbia, according to their websites. As for postgraduate study, costs range from $3,780 (£2,412) a year at Memorial University in Newfoundland to $17,500 (£11,039) at the University College of Cape Breton in Nova Scotia.
As for a visa, you shouldn’t need one. A study placement of up to six months is yours for the applying. For longer study, UK nationals need a permit, for which the Canadian High Commission requires you to have been accepted to a university in Canada, and have proof that you can pay for tuition fees and living expenses. It estimates the latter to be around $10,000 (£6,300) per year, plus CA$4,000 (£2,500) for the first dependant and CA$3,000 (£1,900) for each subsequent dependent. You need a clean criminal record and an equally clean bill of health. It takes eight to 10 weeks to process applications, and costs around £75, which is usually non-refundable, regardless of success.
For those applying to study in Quebec, things are a little different. You will need to get a certificate of acceptance from the Quebec government. Visit immigration-quebec.gouv.qc.ca/en/immigrate-settle/students/index.html for more information.
Overall, though, there are few immigration barriers to UK students. Dr George Maslany, from the University of Regina, confirms: “There’s not much red tape. It takes about two months, but usually anyone from Britain who applies for a permit gets it.”
Financial assistance may be available in scholarships and bursaries. These are numerous and most are competitive, awarded on academic merit rather than financial need. But at the Dr David Hannah, associate vice-president of student and enrolment services at the University of Saskatchewan, says: “We have a guaranteed entrance scholarship programme for undergraduate students, which gives them anywhere from C$500 (£320) to C$3,000 (£1,915) for their first year of study, depending on their academic qualifications. They don’t even have to apply for that, it’s automatic.”
Similarly, places on Canadian courses are almost exclusively awarded on academic qualifications. There are some exceptions, for example medicine often has an interview process. Hannah says: “It’s usually based on secondary school performance. With UK students, we typically look for three A-levels of at least D grades. In some courses it might be higher – for business courses, for example, we’re looking for B grades.”
With the strong and long-standing connections between Canada and the UK, students should have little trouble settling in. “We are very respectful of our traditions, including the monarchy and the Commonwealth, which plays a vital role within our culture and community,” explains Norris. “There’s an affinity here that, from the feedback we get from students and scholars from the UK, gives a tremendous feeling of being at home.”
Another plus, for British linguists, may be Canada’s bilingualism: in parts of the country, it is possible to study in either French or English. Most, however, benefit from the lack of language barrier. Maslany jokes “British students don’t have any difficulty as Canadians are devoid of any accent, but UK students have a range of accents. It can take a little while for us to familiarise ourselves with those!”
And the big chill? “The first winter here can take some adjusting,” Hannah admits, “but all of our buildings at the University of Saskatchewan are connected through interior walkways, so you don’t have to spend too much time outside in the cold. In the summer, temperatures top 30C, and from the middle of April until mid October, it’s really very pleasant around here.”
Norris concludes: “The mood in Canada is one of real optimism. We are very student orientated, with universities that are held in high regard. This is a land that’s focused on the future.”
Tuesday, June 28, 2011
NEW LEGISLATION ON CONSULTANTS COMING INTO FORCE
News Release
Tougher rules governing immigration consultants enacted and new regulator announced
Ottawa, June 28, 2011 — Legislation cracking down on crooked immigration consultants will come into force on June 30, 2011, Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced today.
At the same time, oversight of the consultant community is being turned over to the newly created Immigration Consultants of Canada Regulatory Council (ICCRC). “The Government of Canada has promised to crack down on crooked immigration consultants and their shady practices, and with Bill C-35, we now have the tools,” said the Minister.
Bill C-35 strengthens the rules governing those who charge their clients for immigration advice or representation, making it an offence for anyone other than an accredited immigration representative to conduct business, for a fee or other consideration, at any stage of an application or proceeding. It also increases penalties and fines for unauthorized representation and allows for more government oversight in order to improve the way in which immigration consultants are regulated
With the designation of the ICCRC as the regulator of immigration consultants, consultants who are currently members in good standing of the Canadian Society of Immigration Consultants (CSIC) can begin to register with the ICCRC on June 30, 2011.
Immigration representatives must be either members in good standing of a provincial or territorial law society, including paralegals; members of the Chambre des notaires du Québec; or members of the governing body for immigration consultants.
A 120-day transitional period will be put in place to ensure a smooth transition and continuity of service for both CSIC members currently in good standing and their clients during the transition to the ICCRC. The transition period will end on October 28, 2011.
After a notice was published on March 19, 2011, in the Canada Gazette, Part I, proposing the ICCRC be designated the regulator of immigration consultants, over 70 percent of the public comments received during the 30-day consultation period supported the proposal to establish a new regulator of immigration consultants.
“The ICCRC has committed to accountability, transparency and good governance and has pledged to work to protect the interests of consumers,” added Minister Kenney. “Their efforts, backed by strong new legislation, will allow us to better serve people through our immigration processes and protect potential immigrants, all while improving the integrity of Canada’s immigration system.”
Tougher rules governing immigration consultants enacted and new regulator announced
Ottawa, June 28, 2011 — Legislation cracking down on crooked immigration consultants will come into force on June 30, 2011, Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced today.
At the same time, oversight of the consultant community is being turned over to the newly created Immigration Consultants of Canada Regulatory Council (ICCRC). “The Government of Canada has promised to crack down on crooked immigration consultants and their shady practices, and with Bill C-35, we now have the tools,” said the Minister.
Bill C-35 strengthens the rules governing those who charge their clients for immigration advice or representation, making it an offence for anyone other than an accredited immigration representative to conduct business, for a fee or other consideration, at any stage of an application or proceeding. It also increases penalties and fines for unauthorized representation and allows for more government oversight in order to improve the way in which immigration consultants are regulated
With the designation of the ICCRC as the regulator of immigration consultants, consultants who are currently members in good standing of the Canadian Society of Immigration Consultants (CSIC) can begin to register with the ICCRC on June 30, 2011.
Immigration representatives must be either members in good standing of a provincial or territorial law society, including paralegals; members of the Chambre des notaires du Québec; or members of the governing body for immigration consultants.
A 120-day transitional period will be put in place to ensure a smooth transition and continuity of service for both CSIC members currently in good standing and their clients during the transition to the ICCRC. The transition period will end on October 28, 2011.
After a notice was published on March 19, 2011, in the Canada Gazette, Part I, proposing the ICCRC be designated the regulator of immigration consultants, over 70 percent of the public comments received during the 30-day consultation period supported the proposal to establish a new regulator of immigration consultants.
“The ICCRC has committed to accountability, transparency and good governance and has pledged to work to protect the interests of consumers,” added Minister Kenney. “Their efforts, backed by strong new legislation, will allow us to better serve people through our immigration processes and protect potential immigrants, all while improving the integrity of Canada’s immigration system.”
FAIRNESS INCLUDES OPPORTUNITY TO EXPLAIN OFFICER'S CONCERNS
Here is a case where a visa officer relied on past conduct to refuse a visa, but that conduct could have been easily explained away. The duty of fairness includes an opportunity to explain concerns that the officer has not made clear to the applicant, if they could be addressed in an interview or by providing written evidence. Caution: in this case, it was very clear that the applicant applied BEFORE the expiry of his status in Canada, so he could easily show that he made all reasonable efforts to respect the terms of admission. This is not always true in most other cases.
Youssef v. Canada (Minister of Citizenship and Immigration)
Between
Salim Youssef, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 502
[2011] A.C.F. no 502
2011 FC 399
Docket IMM-4412-10
Federal Court
Montréal, Quebec
Tremblay-Lamer J.
Heard: March 29, 2011.
Judgment: March 31, 2011.
(21 paras.)
___________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 TREMBLAY-LAMER J.:-- This is an application for judicial review submitted by the applicant, Salim Youssef, in accordance with subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision by a visa officer to deny his work permit application.
• I. Background
2 The applicant is a businessman who was born in and is a citizen of Syria. He received an offer to be the Middle East region purchasing director for Basse Alimentation inc., a Canadian company that produces and exports nuts and dried fruit. The applicant entered Canada on September 30, 2009, to meet the company president and discuss this offer of employment. After the applicant and the company president came to an agreement on the employment contract, the company president appointed a lawyer around the month of October 2009 to prepare the applicant's work permit application. The applicant received the confirmation of employment from Service Canada on January 22, 2010, and he received his certificate of acceptance from Quebec on February 1, 2010.
3 The lawyer sent the work permit application to the Canadian consulate in New York around March 17, 2010. This application was accompanied by an application to extend his stay with multiple entry. The file was returned to him several weeks later because of an error in the fees.
4 In the meantime, the applicant stayed in Canada. He alleges that he had wanted to return to Syria, but that his lawyer had advised him to stay here because his original passport would be required in re-submitting the visa application. On his lawyer's advice, the applicant therefore stayed in the country after the expiry of his resident permit.
5 On May 24, 2010, the lawyer went in person to the Canadian consulate in New York to re-submit the applicant's work permit application and, this time, included the exact fees and an application to extend his stay. She returned there on June 3, 2010, to get the answer to the application.
6 The visa officer refused to issue the work permit. He cited the following reasons in support of his decision:
• I am not satisfied that you would leave Canada by the end of the authorized period of your stay. To reach this conclusion, I have considered the fact that you have remained in Canada beyond the period authorized by your temporary resident visa (you entered Canada on 30 September, 2010 ...). I also considered the fact that you provided little evidence with your application that you have strong and significant ties to your home country. I also considered the fact that according to our record, you had originally told the immigration officer in our Embassy in Damascus who gave you a temporary resident visa, that you only stay for one month in Canada.
• II. Issues
7 The following two issues arise from this judicial review:
• 1) Did the visa officer err by failing to ask for additional explanations or to call the applicant to an interview?
• 2) Do the reasons for the visa officer's decision contain errors that warrant the intervention of this Court?
• III. Applicable standards of review
8 The first issue raises concerns of procedural fairness and natural justice, that is, those relating to the applicant's right to be heard or to respond to the visa officer's concerns. In the case at bar, the standard of correctness applies when assessing the process the visa officer followed to arrive at the decision that is the subject of this judicial review (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, at paragraph 43; Sketchley v. Canada (Attorney General), 2005 FCA 404, at paragraph 53; Li v. Canada (Minister of Citizenship and Immigration), 2008 FC 1284, at paragraph 17; Gu v. Canada (Minister of Citizenship and Immigration), 2010 FC 522, at paragraph 15).
9 The standard of review that generally applies to the assessment of a visa officer's decision is reasonableness. Did the visa officer breach the principles of natural justice by failing to ask for additional explanations or to call the applicant to an interview?
10 The applicant submits that the visa officer breached his obligation of procedural fairness in not giving him the opportunity to provide additional information or in not calling him to an interview before denying his work permit application. In doing so, he rendered his decision by disregarding the evidence in the record that demonstrated that he had presented an application to extend his temporary resident visa twice.
11 The respondent is claiming that procedural fairness did not require the visa officer to give the applicant the opportunity to undergo an interview or to respond to his concerns as the requirement to ask for additional information exists, for example, when the visa officer is relying on extrinsic evidence, which is not the situation here. He assessed the documents of the application and exercised his discretionary authority as required by the Act.
12 In Hara v. Canada (Minister of Citizenship and Immigration), 2009 FC 263, at paragraph 23, Justice Russell determined that, even though there is no statutory obligation to grant an interview, procedural fairness nevertheless requires the officer to allow the applicant to respond to his concerns under certain circumstances:
• While there is no statutory right to an interview, procedural fairness requires that an applicant be given an opportunity to respond to an officer's concerns under certain circumstances (Li v. Canada (Minister of Citizenship and Immigration) 2008 FC 1284 at paragraph 35. This duty may arise, for example, if an officer uses extrinsic evidence to form an opinion, or otherwise forms a subjective opinion that an applicant had no way of knowing would be used in an adverse way: Li at paragraph 36.
13 In Gu, above, at paragraph 25, the Court determined that a visa officer who had doubts as to the past temporary permit applications of an applicant should have obtained information from her to address his concerns:
• This is not a case where the officer had concerns with the application which was submitted. Rather the concerns related to past permits and past applications. In light of these circumstances, the Applicant was entitled to be provided with an opportunity to answer these concerns which she could not have reasonably foreseen as being of interest to the officer. Since the application will be returned to another Non-Immigrant Officer for redetermination, the Applicant is now well advised that she must address these concerns with this new officer.
14 In Bonilla v. Canada (Minister of Citizenship and Immigration), 2007 FC 20, the Court found that an officer who had come to the subjective conclusion that the applicant would not be returning to her country of origin after her studies should have given her the opportunity to address his concerns.
15 In this case, in support of his refusal, the visa officer indicated that he was not convinced that the applicant would leave Canada after his stay. He relied mainly on the fact that the applicant had not respected the validity of his visitor's visa:
• Given that subj has remained beyond the validity period of his initial visitor status, given that he originally declares he wanted to stay one month only in Canada to visit his cousin and that he has been in Cda over 8 months, given that I have very little evidence on file of his ties to his home country, given his previous travel history which is very limited, I am not satisfied subject would depart at the end of the authorized stay. (Notes STIDI)
16 However, it is apparent from the evidence in the record that this criticism was unfounded as the applicant had always intended to respect the conditions of his visitor's visa. The work permit application had originally been sent to the consulate in New York on March 17, 2010, while the applicant was still within the rules and had a valid status in Canada. This first submission had been accompanied by the form "Application for Temporary Resident Visa Made Outside of Canada" for renewal of his visitor's visa and on which it was clearly marked: "M. Youssef must travel abroad for work and therefore needs to renew his visitor visa with multiple entry". Instead of being processed immediately, this renewal application was sent back to the applicant along with the entire file for the rectification of fees.
17 The applicant also re-submitted a work permit application accompanied by the exact fees on May 24, 2010. In the list of documents submitted (Document Checklist-Worker), also filed in evidence, the form "Application to Change Conditions, Extend My Stay or Remain in Canada" was checked as being part of the application.
18 This information is essential as it demonstrates that the applicant never intended to exceed the period of validity of his temporary resident permit. The presence of these documents should have at least raised a doubt in the mind of the visa officer that the applicant never intended to exceed the period of validity of his visitor's visa and, therefore, that he also never necessarily intended to exceed the period of validity of his work permit.
19 Thus, the visa officer should have at least provided the applicant with the opportunity to provide explanations as to his intention to remain in Canada after his stay, which would have allowed him to address his concerns. The applicant should not be penalized as he always intended to act in accordance with Canada's immigration laws. Given the facts in this case, this failure constituted a breach of the principles of natural justice.
20 In such a case, it is therefore unnecessary to determine whether the visa officer's decision was reasonable.
21 For these reasons, the application for judicial review is allowed and the matter is returned to another visa officer for redetermination.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the application for judicial review be allowed and that the matter be returned to another visa officer for redetermination.
Youssef v. Canada (Minister of Citizenship and Immigration)
Between
Salim Youssef, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 502
[2011] A.C.F. no 502
2011 FC 399
Docket IMM-4412-10
Federal Court
Montréal, Quebec
Tremblay-Lamer J.
Heard: March 29, 2011.
Judgment: March 31, 2011.
(21 paras.)
___________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 TREMBLAY-LAMER J.:-- This is an application for judicial review submitted by the applicant, Salim Youssef, in accordance with subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision by a visa officer to deny his work permit application.
• I. Background
2 The applicant is a businessman who was born in and is a citizen of Syria. He received an offer to be the Middle East region purchasing director for Basse Alimentation inc., a Canadian company that produces and exports nuts and dried fruit. The applicant entered Canada on September 30, 2009, to meet the company president and discuss this offer of employment. After the applicant and the company president came to an agreement on the employment contract, the company president appointed a lawyer around the month of October 2009 to prepare the applicant's work permit application. The applicant received the confirmation of employment from Service Canada on January 22, 2010, and he received his certificate of acceptance from Quebec on February 1, 2010.
3 The lawyer sent the work permit application to the Canadian consulate in New York around March 17, 2010. This application was accompanied by an application to extend his stay with multiple entry. The file was returned to him several weeks later because of an error in the fees.
4 In the meantime, the applicant stayed in Canada. He alleges that he had wanted to return to Syria, but that his lawyer had advised him to stay here because his original passport would be required in re-submitting the visa application. On his lawyer's advice, the applicant therefore stayed in the country after the expiry of his resident permit.
5 On May 24, 2010, the lawyer went in person to the Canadian consulate in New York to re-submit the applicant's work permit application and, this time, included the exact fees and an application to extend his stay. She returned there on June 3, 2010, to get the answer to the application.
6 The visa officer refused to issue the work permit. He cited the following reasons in support of his decision:
• I am not satisfied that you would leave Canada by the end of the authorized period of your stay. To reach this conclusion, I have considered the fact that you have remained in Canada beyond the period authorized by your temporary resident visa (you entered Canada on 30 September, 2010 ...). I also considered the fact that you provided little evidence with your application that you have strong and significant ties to your home country. I also considered the fact that according to our record, you had originally told the immigration officer in our Embassy in Damascus who gave you a temporary resident visa, that you only stay for one month in Canada.
• II. Issues
7 The following two issues arise from this judicial review:
• 1) Did the visa officer err by failing to ask for additional explanations or to call the applicant to an interview?
• 2) Do the reasons for the visa officer's decision contain errors that warrant the intervention of this Court?
• III. Applicable standards of review
8 The first issue raises concerns of procedural fairness and natural justice, that is, those relating to the applicant's right to be heard or to respond to the visa officer's concerns. In the case at bar, the standard of correctness applies when assessing the process the visa officer followed to arrive at the decision that is the subject of this judicial review (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, at paragraph 43; Sketchley v. Canada (Attorney General), 2005 FCA 404, at paragraph 53; Li v. Canada (Minister of Citizenship and Immigration), 2008 FC 1284, at paragraph 17; Gu v. Canada (Minister of Citizenship and Immigration), 2010 FC 522, at paragraph 15).
9 The standard of review that generally applies to the assessment of a visa officer's decision is reasonableness. Did the visa officer breach the principles of natural justice by failing to ask for additional explanations or to call the applicant to an interview?
10 The applicant submits that the visa officer breached his obligation of procedural fairness in not giving him the opportunity to provide additional information or in not calling him to an interview before denying his work permit application. In doing so, he rendered his decision by disregarding the evidence in the record that demonstrated that he had presented an application to extend his temporary resident visa twice.
11 The respondent is claiming that procedural fairness did not require the visa officer to give the applicant the opportunity to undergo an interview or to respond to his concerns as the requirement to ask for additional information exists, for example, when the visa officer is relying on extrinsic evidence, which is not the situation here. He assessed the documents of the application and exercised his discretionary authority as required by the Act.
12 In Hara v. Canada (Minister of Citizenship and Immigration), 2009 FC 263, at paragraph 23, Justice Russell determined that, even though there is no statutory obligation to grant an interview, procedural fairness nevertheless requires the officer to allow the applicant to respond to his concerns under certain circumstances:
• While there is no statutory right to an interview, procedural fairness requires that an applicant be given an opportunity to respond to an officer's concerns under certain circumstances (Li v. Canada (Minister of Citizenship and Immigration) 2008 FC 1284 at paragraph 35. This duty may arise, for example, if an officer uses extrinsic evidence to form an opinion, or otherwise forms a subjective opinion that an applicant had no way of knowing would be used in an adverse way: Li at paragraph 36.
13 In Gu, above, at paragraph 25, the Court determined that a visa officer who had doubts as to the past temporary permit applications of an applicant should have obtained information from her to address his concerns:
• This is not a case where the officer had concerns with the application which was submitted. Rather the concerns related to past permits and past applications. In light of these circumstances, the Applicant was entitled to be provided with an opportunity to answer these concerns which she could not have reasonably foreseen as being of interest to the officer. Since the application will be returned to another Non-Immigrant Officer for redetermination, the Applicant is now well advised that she must address these concerns with this new officer.
14 In Bonilla v. Canada (Minister of Citizenship and Immigration), 2007 FC 20, the Court found that an officer who had come to the subjective conclusion that the applicant would not be returning to her country of origin after her studies should have given her the opportunity to address his concerns.
15 In this case, in support of his refusal, the visa officer indicated that he was not convinced that the applicant would leave Canada after his stay. He relied mainly on the fact that the applicant had not respected the validity of his visitor's visa:
• Given that subj has remained beyond the validity period of his initial visitor status, given that he originally declares he wanted to stay one month only in Canada to visit his cousin and that he has been in Cda over 8 months, given that I have very little evidence on file of his ties to his home country, given his previous travel history which is very limited, I am not satisfied subject would depart at the end of the authorized stay. (Notes STIDI)
16 However, it is apparent from the evidence in the record that this criticism was unfounded as the applicant had always intended to respect the conditions of his visitor's visa. The work permit application had originally been sent to the consulate in New York on March 17, 2010, while the applicant was still within the rules and had a valid status in Canada. This first submission had been accompanied by the form "Application for Temporary Resident Visa Made Outside of Canada" for renewal of his visitor's visa and on which it was clearly marked: "M. Youssef must travel abroad for work and therefore needs to renew his visitor visa with multiple entry". Instead of being processed immediately, this renewal application was sent back to the applicant along with the entire file for the rectification of fees.
17 The applicant also re-submitted a work permit application accompanied by the exact fees on May 24, 2010. In the list of documents submitted (Document Checklist-Worker), also filed in evidence, the form "Application to Change Conditions, Extend My Stay or Remain in Canada" was checked as being part of the application.
18 This information is essential as it demonstrates that the applicant never intended to exceed the period of validity of his temporary resident permit. The presence of these documents should have at least raised a doubt in the mind of the visa officer that the applicant never intended to exceed the period of validity of his visitor's visa and, therefore, that he also never necessarily intended to exceed the period of validity of his work permit.
19 Thus, the visa officer should have at least provided the applicant with the opportunity to provide explanations as to his intention to remain in Canada after his stay, which would have allowed him to address his concerns. The applicant should not be penalized as he always intended to act in accordance with Canada's immigration laws. Given the facts in this case, this failure constituted a breach of the principles of natural justice.
20 In such a case, it is therefore unnecessary to determine whether the visa officer's decision was reasonable.
21 For these reasons, the application for judicial review is allowed and the matter is returned to another visa officer for redetermination.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the application for judicial review be allowed and that the matter be returned to another visa officer for redetermination.
CONTRADICTORY STATEMENTS RESULT IN STUDY PERMIT REFUSAL
Sometimes applicants go overboard in providing information and contradict themselves in their zeal to obtain a visa. This is particularly true of unrepresented applicants. See recent case below:
Loveridge v. Canada (Minister of Citizenship and Immigration)
Between
Melanie Loveridge, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 867
2011 FC 694
Docket IMM-4839-10
Federal Court
Montréal, Quebec
Bédard J.
Heard: June 14, 2011.
Judgment: June 15, 2011.
(24 paras.)
_____________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 BÉDARD J.:-- This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision of a visa officer with the High Commission of Canada in the United Kingdom, dated July 28, 2010, whereby the applicant's application for a study permit was refused.
2 Counsel for the applicant requested that the style of cause be amended in order to identify the applicant with her complete name instead of an initial.
• I. Background
3 The applicant is a citizen of the United Kingdom (UK). Between 2006 and 2009, she attended Hartpury College in Gloucestershire where she studied animal care and animal management.
4 On March 22, 2010, she was accepted into the Pre-Health Sciences program at Georgian College in Ontario for the 2010-2011 school year. She was also conditionally accepted into the school's Veterinary Technician program for the subsequent year.
5 She applied to the High Commission of Canada in the UK for a Canadian study permit at the end of March 2010. She indicated in her application that her husband would be accompanying her to Canada.
6 The applicant submitted a "motivation letter" in support of her application which read, in part:
• I have decided to study on the Pre Med Science course and the Veterinary Technician course in Canada as I wish to start a fresh life in Canada and make the most of learning. I chose these courses as I have a passion for animals and veterinary science. By starting a new life in Canada I believe I will be happier in a country where there are more job opportunities. Now that I have been accepted onto the pre med science course I can make the most of learning as much as I can.
• ...
• I have chosen not to study in England as there are not many college places available as the veterinary profession is very competitive. If I
• had applied to college in England and achieved my educational goals it would be very difficult to find a job because of the recession and because too many people here want to work with animals. There are very few animal related jobs in England and as I have been told there is no shortage of animal jobs available in Canada.
• ...
• If I took a course in England I would be qualified to do what I want to do in the veterinary profession but, the chances of finding a job in the veterinary profession would not be very good as there are so many people looking for the same type of job. When I return to the UK I will be able to get my Canadian qualification evaluated to a UK standard. Since work in the animal care field in the UK is very competitive, I am confident that UK employers will value my Canadian qualification and experience. This combined with the qualifications and experience I have already gained from the UK should put me in a stronger position to find employment upon my return to the UK.
• My family and friends are based in the UK.
II. The decision under review
7 By letter, dated July 28, 2010, a visa officer with the High Commission of Canada in the UK found that the applicant had not met the requirements set out in the IRPA to warrant granting a study permit. The officer explained the decision as follows:
• You have not demonstrated sufficient ties to the U.K. to satisfy me that you have dual intent and will leave Canada at the end of the period authorized for your stay.
8 In a Computer Assisted Immigration Processing System (CAIPS) note dated July 23, 2010, the officer indicated that both the applicant and her husband were unemployed in the UK, that they had both experienced difficulty becoming established there, that there was no proof that they owned property there, and that the bank documents that they had submitted did not provide any detail as to the ownership of the associated accounts. She found that the applicant and her husband had few ties to the UK and concluded that she was "not satisfied" that they would return to the UK if they were refused permanent status in Canada.
• III. Issue
9 Only one issue arises for consideration on this application:
Did the officer err by finding that the applicant had not demonstrated that she would leave Canada by the end of the period authorized for her stay?
• IV. Standard of review
10 The question of whether or not an applicant will leave Canada by the end of the period authorized for their stay is a question of fact to be reviewed against the reasonableness standard (Patel v Canada (Minister of Citizenship and Immigration), 2009 FC 602 at para 28, 178 ACWS (3d) 428; Wang v Canada (Minister of Citizenship and Immigration), 2009 FC 619 at para 13, 345 FTR 294 [Wang]). The Court will consider the existence of justification, transparency and intelligibility within the decision-making process and whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190).
• V. Analysis
11 Paragraph 20(1)(b) of the IRPA indicates, in part, that in order to become a temporary resident, a foreign national must establish that they will leave Canada by the end of the period authorized for their stay:
• Obligation on entry
• 20. (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish,
• ...
• (b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay.
* *
• Obligation à l'entrée au Canada
• 20. (1) L'étranger non visé à l'article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver :
• [...]
• b) pour devenir un résident temporaire, qu'il détient les visa ou autres documents requis par règlement et aura quitté le Canada à la fin de la période de séjour autorisée.
12 Paragraph 216(1)(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 also indicates that a foreign national applying for a study permit must establish that they will leave Canada by the end of the period authorized for their stay:
• Study permits 216. (1) Subject to subsections (2) and (3), an officer shall issue a study permit to a foreign national if, following an examination, it is established that the foreign national
• ...
• (b) will leave Canada by the end of the period authorized for their stay under Division 2 of Part 9;
* * *
• Permis d'études
• 216. (1) Sous réserve des paragraphes (2) et (3), l'agent délivre un permis d'études à l'étranger si, à l'issue d'un contrôle, les éléments suivants sont établis :
• [...]
• b) il quittera le Canada à la fin de la période de séjour qui lui est applicable au titre de la section 2 de la partie 9;
13 Despite the clear requirement for applicants to establish that they will leave Canada by the end of the period authorized for their stay, subsection 22(2) of the IRPA nonetheless allows an applicant for temporary status to apply with the ultimate intention of becoming a permanent resident. That is to say, "a person may have the dual intent of immigrating and of abiding by the immigration law respecting temporary entry" (Rebmann v Canada (Solicitor General), 2005 FC 310 at para 19, [2005] 3 FCR 285). Subsection 22(2) reads:
• Dual intent
• 22(2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.
* * *
• Double intention
• 22(2) L'intention qu'il a de s'établir au Canada n'empêche pas l'étranger de devenir résident temporaire sur preuve qu'il aura quitté le Canada à la fin de la période de séjour autorisée.
14 The applicant contends that it was unreasonable for the officer, in light of the evidence that was presented, to infer on her part an intention to remain permanently in Canada. She insists that her motivation letter indicated, at a minimum, a willingness to return to the UK if required and that, as such, it was unreasonable for the officer to find that she had not established that she would leave Canada if she were required to do so. She argues that, in fact, her motivation letter clearly expressed her dual intent: she would stay in Canada if she had the opportunity to stay but would go back to the UK if required. She contends that she did not need to have a firm intent to go back to her country of origin in order to have a dual intent within the meaning of section 22 of the IRPA.
15 The applicant insists that she was credible and that she did not hold back any information in her application. She argues that there was no contradiction in her motivation letter but, on the contrary, that the letter clarified her intentions. She further argues that the officer made an error when concluding that the bank statements did not identify the owner of the accounts since the name NLoveridge appeared on the statements. She further points to the fact that her family and friends are located in the UK as demonstrating her strong ties to that country and her motivation to return there. The applicant also submits that no negative inference should be made from the fact that she and her husband were unemployed and that she did not have ownership of property in the UK. She contends that those circumstances could be viewed as reasons for wanting to migrate to another country, but that they do not support the contention that the applicant would refuse to leave Canada if required to do so.
16 The respondent, on the other hand, argues that the applicant's motivation letter was vague, contradictory, and could not properly be interpreted as supporting a singular intention of returning to the UK. The respondent submits that the applicant had the burden of convincing the officer that she would leave Canada by the end of the period authorized for her stay and that she failed to discharge that burden.
17 I agree with the respondent that the applicant's motivation letter is contradictory and unclear. In the first portion of her letter, the applicant indicates that her intention is to remain permanently in Canada. She speaks of "starting a new life in Canada" and states that she "will be happier in a country where there are more job opportunities". If her sole intention was to stay in Canada only long enough to complete her studies, as is argued by the applicant, then the additional job opportunities available in Canada would be of no relevance. In the latter portion of the applicant's letter, however, she indicates that "when" she returns to the UK she will be able to use the education received in Canada as a competitive advantage in her job search.
18 The motivation letter, thus, indicates both an intention to stay in Canada as well as an intention to leave Canada and return to the UK. This is different from indicating a "dual intent" within the meaning of subsection 22(2) of the IRPA, because that type of a "dual intent" is actually an intention to remain permanently in Canada, coupled with an intention to abide by immigration laws as required - i.e. a willingness to leave Canada if required to do so. The two intentions involved under subsection 22(2) are complementary, not contradictory.
19 Given that the intentions expressed in the applicant's motivation letter appear to be contradictory, it cannot be said that the officer acted unreasonably in finding that the letter provided little support for the proposition that the applicant would leave Canada by the end of the period authorized for her stay.
20 Indeed, the burden was with the applicant to demonstrate that she would leave Canada at the end of her study period. As indicated by Justice Russel Zinn in Wang, above, at para 14, "The Officer is required to assess the evidence presented and weigh that evidence to determine whether it establishes on the balance of probabilities that the applicant will leave Canada at the conclusion of [the] study permit."
21 The officer noted that both the applicant and her husband were unemployed in the UK and had experienced difficulty becoming established there. She also noted that there was no proof of property ownership in the UK. She concluded that the applicant had not demonstrated sufficient ties to the UK to show that she would leave Canada at the end of the period authorized for her stay. While it is true that the applicant did indicate in her motivation letter that her "family and friends are based in the UK", she did not provide any further detail on familial or other ties to the UK.
22 Ultimately, even if the officer erred in considering the bank statements, given the contradictory nature of the applicant's motivation letter, combined with the dearth of other evidence indicating that the applicant would leave Canada at the end of the period authorized for her stay, it cannot be said that the officer erred in finding that the applicant had not demonstrated dual intent. It is not the Court's role to reassess the evidence. The officer's determination fell within the range of possible, acceptable outcomes defensible in respect of the facts and law and was reasonable.
23 For the foregoing reasons, this application for judicial review is dismissed.
24 No questions were proposed for certification and none arise.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question is certified. The style of cause is amended and the applicant is identified as Melanie Loveridge.
BÉDARD J.
Loveridge v. Canada (Minister of Citizenship and Immigration)
Between
Melanie Loveridge, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 867
2011 FC 694
Docket IMM-4839-10
Federal Court
Montréal, Quebec
Bédard J.
Heard: June 14, 2011.
Judgment: June 15, 2011.
(24 paras.)
_____________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 BÉDARD J.:-- This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision of a visa officer with the High Commission of Canada in the United Kingdom, dated July 28, 2010, whereby the applicant's application for a study permit was refused.
2 Counsel for the applicant requested that the style of cause be amended in order to identify the applicant with her complete name instead of an initial.
• I. Background
3 The applicant is a citizen of the United Kingdom (UK). Between 2006 and 2009, she attended Hartpury College in Gloucestershire where she studied animal care and animal management.
4 On March 22, 2010, she was accepted into the Pre-Health Sciences program at Georgian College in Ontario for the 2010-2011 school year. She was also conditionally accepted into the school's Veterinary Technician program for the subsequent year.
5 She applied to the High Commission of Canada in the UK for a Canadian study permit at the end of March 2010. She indicated in her application that her husband would be accompanying her to Canada.
6 The applicant submitted a "motivation letter" in support of her application which read, in part:
• I have decided to study on the Pre Med Science course and the Veterinary Technician course in Canada as I wish to start a fresh life in Canada and make the most of learning. I chose these courses as I have a passion for animals and veterinary science. By starting a new life in Canada I believe I will be happier in a country where there are more job opportunities. Now that I have been accepted onto the pre med science course I can make the most of learning as much as I can.
• ...
• I have chosen not to study in England as there are not many college places available as the veterinary profession is very competitive. If I
• had applied to college in England and achieved my educational goals it would be very difficult to find a job because of the recession and because too many people here want to work with animals. There are very few animal related jobs in England and as I have been told there is no shortage of animal jobs available in Canada.
• ...
• If I took a course in England I would be qualified to do what I want to do in the veterinary profession but, the chances of finding a job in the veterinary profession would not be very good as there are so many people looking for the same type of job. When I return to the UK I will be able to get my Canadian qualification evaluated to a UK standard. Since work in the animal care field in the UK is very competitive, I am confident that UK employers will value my Canadian qualification and experience. This combined with the qualifications and experience I have already gained from the UK should put me in a stronger position to find employment upon my return to the UK.
• My family and friends are based in the UK.
II. The decision under review
7 By letter, dated July 28, 2010, a visa officer with the High Commission of Canada in the UK found that the applicant had not met the requirements set out in the IRPA to warrant granting a study permit. The officer explained the decision as follows:
• You have not demonstrated sufficient ties to the U.K. to satisfy me that you have dual intent and will leave Canada at the end of the period authorized for your stay.
8 In a Computer Assisted Immigration Processing System (CAIPS) note dated July 23, 2010, the officer indicated that both the applicant and her husband were unemployed in the UK, that they had both experienced difficulty becoming established there, that there was no proof that they owned property there, and that the bank documents that they had submitted did not provide any detail as to the ownership of the associated accounts. She found that the applicant and her husband had few ties to the UK and concluded that she was "not satisfied" that they would return to the UK if they were refused permanent status in Canada.
• III. Issue
9 Only one issue arises for consideration on this application:
Did the officer err by finding that the applicant had not demonstrated that she would leave Canada by the end of the period authorized for her stay?
• IV. Standard of review
10 The question of whether or not an applicant will leave Canada by the end of the period authorized for their stay is a question of fact to be reviewed against the reasonableness standard (Patel v Canada (Minister of Citizenship and Immigration), 2009 FC 602 at para 28, 178 ACWS (3d) 428; Wang v Canada (Minister of Citizenship and Immigration), 2009 FC 619 at para 13, 345 FTR 294 [Wang]). The Court will consider the existence of justification, transparency and intelligibility within the decision-making process and whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190).
• V. Analysis
11 Paragraph 20(1)(b) of the IRPA indicates, in part, that in order to become a temporary resident, a foreign national must establish that they will leave Canada by the end of the period authorized for their stay:
• Obligation on entry
• 20. (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish,
• ...
• (b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay.
* *
• Obligation à l'entrée au Canada
• 20. (1) L'étranger non visé à l'article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver :
• [...]
• b) pour devenir un résident temporaire, qu'il détient les visa ou autres documents requis par règlement et aura quitté le Canada à la fin de la période de séjour autorisée.
12 Paragraph 216(1)(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 also indicates that a foreign national applying for a study permit must establish that they will leave Canada by the end of the period authorized for their stay:
• Study permits 216. (1) Subject to subsections (2) and (3), an officer shall issue a study permit to a foreign national if, following an examination, it is established that the foreign national
• ...
• (b) will leave Canada by the end of the period authorized for their stay under Division 2 of Part 9;
* * *
• Permis d'études
• 216. (1) Sous réserve des paragraphes (2) et (3), l'agent délivre un permis d'études à l'étranger si, à l'issue d'un contrôle, les éléments suivants sont établis :
• [...]
• b) il quittera le Canada à la fin de la période de séjour qui lui est applicable au titre de la section 2 de la partie 9;
13 Despite the clear requirement for applicants to establish that they will leave Canada by the end of the period authorized for their stay, subsection 22(2) of the IRPA nonetheless allows an applicant for temporary status to apply with the ultimate intention of becoming a permanent resident. That is to say, "a person may have the dual intent of immigrating and of abiding by the immigration law respecting temporary entry" (Rebmann v Canada (Solicitor General), 2005 FC 310 at para 19, [2005] 3 FCR 285). Subsection 22(2) reads:
• Dual intent
• 22(2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.
* * *
• Double intention
• 22(2) L'intention qu'il a de s'établir au Canada n'empêche pas l'étranger de devenir résident temporaire sur preuve qu'il aura quitté le Canada à la fin de la période de séjour autorisée.
14 The applicant contends that it was unreasonable for the officer, in light of the evidence that was presented, to infer on her part an intention to remain permanently in Canada. She insists that her motivation letter indicated, at a minimum, a willingness to return to the UK if required and that, as such, it was unreasonable for the officer to find that she had not established that she would leave Canada if she were required to do so. She argues that, in fact, her motivation letter clearly expressed her dual intent: she would stay in Canada if she had the opportunity to stay but would go back to the UK if required. She contends that she did not need to have a firm intent to go back to her country of origin in order to have a dual intent within the meaning of section 22 of the IRPA.
15 The applicant insists that she was credible and that she did not hold back any information in her application. She argues that there was no contradiction in her motivation letter but, on the contrary, that the letter clarified her intentions. She further argues that the officer made an error when concluding that the bank statements did not identify the owner of the accounts since the name NLoveridge appeared on the statements. She further points to the fact that her family and friends are located in the UK as demonstrating her strong ties to that country and her motivation to return there. The applicant also submits that no negative inference should be made from the fact that she and her husband were unemployed and that she did not have ownership of property in the UK. She contends that those circumstances could be viewed as reasons for wanting to migrate to another country, but that they do not support the contention that the applicant would refuse to leave Canada if required to do so.
16 The respondent, on the other hand, argues that the applicant's motivation letter was vague, contradictory, and could not properly be interpreted as supporting a singular intention of returning to the UK. The respondent submits that the applicant had the burden of convincing the officer that she would leave Canada by the end of the period authorized for her stay and that she failed to discharge that burden.
17 I agree with the respondent that the applicant's motivation letter is contradictory and unclear. In the first portion of her letter, the applicant indicates that her intention is to remain permanently in Canada. She speaks of "starting a new life in Canada" and states that she "will be happier in a country where there are more job opportunities". If her sole intention was to stay in Canada only long enough to complete her studies, as is argued by the applicant, then the additional job opportunities available in Canada would be of no relevance. In the latter portion of the applicant's letter, however, she indicates that "when" she returns to the UK she will be able to use the education received in Canada as a competitive advantage in her job search.
18 The motivation letter, thus, indicates both an intention to stay in Canada as well as an intention to leave Canada and return to the UK. This is different from indicating a "dual intent" within the meaning of subsection 22(2) of the IRPA, because that type of a "dual intent" is actually an intention to remain permanently in Canada, coupled with an intention to abide by immigration laws as required - i.e. a willingness to leave Canada if required to do so. The two intentions involved under subsection 22(2) are complementary, not contradictory.
19 Given that the intentions expressed in the applicant's motivation letter appear to be contradictory, it cannot be said that the officer acted unreasonably in finding that the letter provided little support for the proposition that the applicant would leave Canada by the end of the period authorized for her stay.
20 Indeed, the burden was with the applicant to demonstrate that she would leave Canada at the end of her study period. As indicated by Justice Russel Zinn in Wang, above, at para 14, "The Officer is required to assess the evidence presented and weigh that evidence to determine whether it establishes on the balance of probabilities that the applicant will leave Canada at the conclusion of [the] study permit."
21 The officer noted that both the applicant and her husband were unemployed in the UK and had experienced difficulty becoming established there. She also noted that there was no proof of property ownership in the UK. She concluded that the applicant had not demonstrated sufficient ties to the UK to show that she would leave Canada at the end of the period authorized for her stay. While it is true that the applicant did indicate in her motivation letter that her "family and friends are based in the UK", she did not provide any further detail on familial or other ties to the UK.
22 Ultimately, even if the officer erred in considering the bank statements, given the contradictory nature of the applicant's motivation letter, combined with the dearth of other evidence indicating that the applicant would leave Canada at the end of the period authorized for her stay, it cannot be said that the officer erred in finding that the applicant had not demonstrated dual intent. It is not the Court's role to reassess the evidence. The officer's determination fell within the range of possible, acceptable outcomes defensible in respect of the facts and law and was reasonable.
23 For the foregoing reasons, this application for judicial review is dismissed.
24 No questions were proposed for certification and none arise.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question is certified. The style of cause is amended and the applicant is identified as Melanie Loveridge.
BÉDARD J.
Friday, June 24, 2011
SKILLED WORKER, INVESTOR AND ENTREPRENEUR REDUCTIONS ANNOUNCED
News Release
“The backlog of federal skilled worker applications is now half of what it was when we announced the Action Plan for Faster Immigration in 2008,” said Minister Kenney. “These measures will help us to continue that progress.”
Canada receives many more immigration applications than can be accepted every year. As part of ongoing efforts to better align application intake with priorities for immigration, Citizenship and Immigration Canada (CIC) is limiting the number of new applications it will consider in certain categories of the federal economic immigration stream.
Effective July 1, 2011, the changes will affect new applicants to the federal Skilled Worker, federal Immigrant Investor and federal Entrepreneur programs. The changes will not affect the number of permanent resident admissions in 2011 in these three categories.
“Canada continues to welcome historically high numbers of new immigrants each year, but the Government continues to receive applications that far exceed this number,” said Minister Kenney. “If we don't keep putting reasonable limits on new applications, backlogs and wait times will grow.”
In November 2008, the government first took steps to identify for processing those federal skilled worker applications that responded to Canada’s labour needs, such as applicants with arranged employment offers from Canadian employers or with experience in an occupation in high demand. In June 2010, the government released an updated list of 29 priority occupations and introduced a global cap of 20,000 for federal skilled workers, as well as a sub-cap of 1,000 under each occupation. Over the past year, CIC has received approximately 13,800 federal skilled worker applications under the priority occupations list (figure accurate as of June 24, 2011).
Now, for applicants who do not have an offer of employment in Canada, the government will further limit the number of new federal skilled worker applications that are considered for processing to 10,000 a year, beginning July 1. This limit will help better align the number of applications with labour market demand. Within the 10,000 limit, a maximum of 500 new applications in each of the current 29 priority occupations will be considered.
In addition, the Minister is introducing a cap of 700 on new federal investor applications. Although last year, CIC made changes that raised the minimum net worth and investment requirements, it continues to receive applications in excess of what is required. An annual cap on new applications will allow for progress on backlog reduction while ensuring that the Department has a sufficient volume of new files to meet its commitments.
The Minister is also introducing a temporary moratorium on new federal entrepreneur applications. Wait times for this program currently stretch to eight years in some visa offices. By ceasing to accept new applications as of July 1, the government will prevent further processing delays. The federal Entrepreneur Program will undergo a review in the coming months to ensure that Canada is better able to attract and retain innovative entrepreneurs.
The authority for these changes, which are being introduced through ministerial instructions, comes from amendments to the Immigration and Refugee Protection Act approved by Parliament in 2008 as part of the Action Plan for Faster Immigration. The instructions are meant to be a flexible tool that allows the government to align the intake of immigration applications with priorities for immigration.
Since these changes were implemented in November 2008, the backlog of pre-2008 federal skilled worker applicants has decreased by 50 percent. As well, priority applications are being processed in a period of months rather than years, as was the case prior to the 2008 changes.
The CIC website will be updated on July 1, 2011, with details on application requirements and procedures for affected programs.
Changes to economic immigration programs will help further reduce backlogs and improve wait times
Ottawa, June 24, 2011 — Canada is adjusting its intake of applications from economic immigrants to further reduce the backlog and improve wait times while meeting the country’s labour market needs, Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced today.“The backlog of federal skilled worker applications is now half of what it was when we announced the Action Plan for Faster Immigration in 2008,” said Minister Kenney. “These measures will help us to continue that progress.”
Canada receives many more immigration applications than can be accepted every year. As part of ongoing efforts to better align application intake with priorities for immigration, Citizenship and Immigration Canada (CIC) is limiting the number of new applications it will consider in certain categories of the federal economic immigration stream.
Effective July 1, 2011, the changes will affect new applicants to the federal Skilled Worker, federal Immigrant Investor and federal Entrepreneur programs. The changes will not affect the number of permanent resident admissions in 2011 in these three categories.
“Canada continues to welcome historically high numbers of new immigrants each year, but the Government continues to receive applications that far exceed this number,” said Minister Kenney. “If we don't keep putting reasonable limits on new applications, backlogs and wait times will grow.”
In November 2008, the government first took steps to identify for processing those federal skilled worker applications that responded to Canada’s labour needs, such as applicants with arranged employment offers from Canadian employers or with experience in an occupation in high demand. In June 2010, the government released an updated list of 29 priority occupations and introduced a global cap of 20,000 for federal skilled workers, as well as a sub-cap of 1,000 under each occupation. Over the past year, CIC has received approximately 13,800 federal skilled worker applications under the priority occupations list (figure accurate as of June 24, 2011).
Now, for applicants who do not have an offer of employment in Canada, the government will further limit the number of new federal skilled worker applications that are considered for processing to 10,000 a year, beginning July 1. This limit will help better align the number of applications with labour market demand. Within the 10,000 limit, a maximum of 500 new applications in each of the current 29 priority occupations will be considered.
In addition, the Minister is introducing a cap of 700 on new federal investor applications. Although last year, CIC made changes that raised the minimum net worth and investment requirements, it continues to receive applications in excess of what is required. An annual cap on new applications will allow for progress on backlog reduction while ensuring that the Department has a sufficient volume of new files to meet its commitments.
The Minister is also introducing a temporary moratorium on new federal entrepreneur applications. Wait times for this program currently stretch to eight years in some visa offices. By ceasing to accept new applications as of July 1, the government will prevent further processing delays. The federal Entrepreneur Program will undergo a review in the coming months to ensure that Canada is better able to attract and retain innovative entrepreneurs.
The authority for these changes, which are being introduced through ministerial instructions, comes from amendments to the Immigration and Refugee Protection Act approved by Parliament in 2008 as part of the Action Plan for Faster Immigration. The instructions are meant to be a flexible tool that allows the government to align the intake of immigration applications with priorities for immigration.
Since these changes were implemented in November 2008, the backlog of pre-2008 federal skilled worker applicants has decreased by 50 percent. As well, priority applications are being processed in a period of months rather than years, as was the case prior to the 2008 changes.
The CIC website will be updated on July 1, 2011, with details on application requirements and procedures for affected programs.
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