MEDICAL EXAM FOR CHILD IN PARENTAL CUSTODY AT ISSUE IN FEDERAL COURT CASE

The question of medical examinations for a child in cases where one parent only has custody is a very common problem for Permanent Residency applicants. In some cases, the custodial parent refuses access, in other cases, they refuse permission for the child to be added to the application. Thai is a big headache for applicants and counsel trying to address the situation. In the case below, however, the applicant had custody of the child but seems to have changed her mind during the process as to the child immigration, at least at the same time as her application. The Federal Court refused to overturn the visa officer's refusal of the application for failure to examine the child.

Case Name:
Nguyen v. Canada (Minister of Citizenship and Immigration)

Between
Le Kieu Khanh Nguyen, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 1328

2014 FC 1191

Docket: IMM-5843-13

 Federal Court
Toronto, Ontario

Diner J.

Heard: December 2, 2014.
Judgment: December 9, 2014.

(37 paras.)

---

JUDGMENT AND REASONS

·        DINER J.:-- 

I. Overview

1     This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA, the Act], of the decision dated May 21, 2013 of a Citizenship and Immigration Canada [CIC] officer [Officer] refusing the Applicant's request to waive the medical examination of her dependent son with respect to her application for permanent residence in Canada as a member of the spouse or common-law partner in Canada class.

II. Facts

2     In 2009, Le Kieu Khanh Nguyen [Applicant] applied for permanent residence in Canada as a member of the spouse or common-law partner in Canada class. After CIC advised the Applicant that her son was required to undergo an immigration medical examination, she requested that CIC close her son's file, as he was living with his father at the time and was not interested in going to Canada. In response, CIC advised her that whether or not her son was accompanying her, he would be required to undergo a medical examination in order to establish that he was not inadmissible.

3     Thus, the Applicant provided a translated copy of her divorce judgment [Divorce Judgement] and a letter from a lawyer, dated March 25, 2012 [Lawyer's Confirmation Letter].

4     CIC advised the Applicant that she had provided conflicting information with respect to the custody of her son. On the one hand, she had stated that he was in the custody of his father, and on the other, she had provided documents indicating that he was looked after by his grandparents. She was asked to clarify "with certified documents as per the custody agreement in [her] divorce decision" (Applicant's Record [AR], p 153). She was given 60 days to provide the medical examination of her son, or to make submissions on her ability to comply with the requirement.

5     In July 2012, the Applicant's immigration consultant wrote a letter [Consultant's Letter] requesting that CIC waive the medical examination requirement for the Applicant's son, without excluding him from the possibility of future sponsorship by his mother. The consultant advised that the Applicant was not seeking for her son to join her in Canada at that time, but that the need may come in the future for her to sponsor him to come to Canada. He further advised that the Applicant did not have de facto custody of her son and did not have the power to make the medical examination happen at that time, as her son was with his biological father. As the father refused to allow the medical examination, and as there may be a need for the son to come to Canada in the future, the consultant requested that CIC waive the requirement based on the best interests of the child [BIOC] (Certified Tribunal Record [CTR], pp 150-151).

6     In response to the request to waive the requirement, CIC requested proof that all reasonable efforts had been made to have the dependent examined. The Applicant's consultant provided a number of documents to confirm that the son was living with the Applicant's ex-husband at the time and that her ex-husband refused to allow his son to undergo a medical examination (CTR, pp 135, 136, 145, 147).

III. Decision

7     On May 21, 2013, the Officer refused the Applicant's request to waive the requirement to have her son undergo a medical examination [Decision], writing:

·        You have submitted conflicting information on the custody of your minor son, and you have provided information which indicates you intend to sponsor your minor son in the future. After careful consideration of the circumstances, your request to waive the examination has been denied. 

·        (CTR, p 167). 

8     The officer's reasons provided to the Court are in the form of FOSS Notes. These reasons indicate that CIC found the following evidence to be conflicting on the issue of the custody of the son:

·        A. 

The Divorce Judgment gave the Applicant the right to "bring up" her son, and gave her ex-husband the right to "see, take care and educate" the son (CTR, pp 56-57; AR, pp 90-91). 

·        B. 

The Lawyer's Confirmation Letter indicated that the Divorce Judgment represents that the son was to be raised by his mother. The Letter further confirmed that because the Applicant is not regularly in Vietnam, her son "will be supervised and cared about by his grandfather and grandmother... at the same above mentioned address." (CTR , p 186) 

·        C. 

The Consultant's Letter stated that "the child has been in the custody of his father since the departure of the applicant from Vietnam." It also stated that the lawyer who drafted the Lawyer's Confirmation Letter based his conclusion that the son was living with his grandparents on the Divorce Judgment and the fact that the child was with the grandparents when they attended at his office. The consultant advised that the child had visited the grandparents in April 2012, as they sometimes cared for him, but was then returned to the custody of his father. He went on to argue that "if the grandparents had custody of the child, they would have easily taken the child to undergo his medical examination." (CTR, p 150) 

·        D. 

The Applicant stated in an unsworn confirmation letter dated October 25, 2012 that when she left Vietnam in 2008, she "left [her] child in the custody of his father." (CTR, p 66) 

·        E. 

A second lawyer's letter, dated October 12, 2012, stated that based on the Divorce Judgment, the Applicant was "entitled to bring up their common child" and that "his maternal grandparents [...were] his guardians." The letter also stated that his "father, picked [the son] up to live together in Vinh Phuoc", that the maternal grandparents urged the father to take him for the medical examination, but that the father "has not done and wanted [the son] to live with him" (CTR, pp 66-70). 

9     The reasons also noted conflicting information provided with respect to whether the Applicant intended for her son to come and live with her in Canada in the future (CTR, pp 28, 75-78).

10     Finally, the Officer found that as the Applicant had not established that her son was in the sole custody of another person, he had to be examined:

·        It appears that the client does in fact want her son to accompany her to Canada, even if not at this time, but at some point in the future. Client has not provided evidence that her non-accompanying overseas dependant son is in the sole custody of another person. She has provided conflicting information on the living arrangements and custody of her son. Her son is a minor child (currently 9 years old), and as she cannot provide evidence that he is in the sole custody of another person, he must be examined. Request from 27JUL2012 letter to waive examination of dependant has been denied. [...] 

·        (CTR, pp 76-78). 

IV. Issues

11     The Applicant has raised the following issues:

·        A. 

Whether the Officer incorrectly interpreted section 23 of the Regulations, by requiring that the Applicant prove that another person had sole custody of her son in order to be captured by that section. 

·        B. 

Whether the Officer's refusal to waive the requirement that the Applicant's dependent son be examined for medical inadmissibility was reasonable. 

V. Relevant Provisions

12     Subsection 42(a) of IRPA clarifies that if a non-accompanying family member is inadmissible, that will only make the foreign national applicant inadmissible in prescribed circumstances:

·        42. A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if 

·        (a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; [...] 

13     These "prescribed circumstances" are set out in section 23 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations]:

·        23. For the purposes of paragraph 42(a) of the Act, the prescribed circumstances in which the foreign national is inadmissible on grounds of an inadmissible non-accompanying family member are that 

·        (a) the foreign national has made an application for a permanent resident visa or to remain in Canada as a permanent resident; and 

·        (b) 

the non-accompanying family member

·        is 

  

·        [...] 

·        (iii) 

a dependent child of the foreign national and either the foreign national or an accompanying family member of the foreign national has custody of that child or is empowered to act on behalf of that child by virtue of a court order or written agreement or by operation of law, or 

·        [...] 

·        [Emphasis added] 

VI. Standard of Review

14     The interpretation of the "custody" requirement in section 23 of the Regulations is reviewable on a standard of reasonableness. The presumption is that an administrative tribunal's interpretation of its home statutes is reviewable on a reasonableness standard (Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at para 30). That presumption is not rebutted in this case, as the interpretation does not fall into any of the categories of questions to which the correctness standard continues to apply (B010 v MCI, 2013 FCA 87 at paras 64-72; Skobodzinska v MCI, 2008 FC 887 at paras 9-13).

15     The Officer's Decision not to waive the medical examination requirement is a question of mixed fact and law and is also reviewable on a standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at para 51). When reviewing a decision on the standard of reasonableness, the Court is concerned with "the existence of justification, transparency and intelligibility within the decision-making process" and with "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir at para 47).

16     The Applicant argued that the interpretation of custody involves family law components and thus should be reviewed on a correctness standard. I disagree.

17     The Federal Court recently stated that a visa officer's decision whether to exercise H&C discretion, including in matters involving BIOC arguments, "involved the application of settled legal principle[s] to the particular facts of the case, a classic instance of reasonableness review" (Habtenkiel v Canada (MCI), 2014 FCA 180, at para 43). In any event, it is my conclusion that the Officer reasonably interpreted and applied the legislation in this case.

VII. Parties' Submissions

18     The Applicant submits that the Officer erred in interpreting section 23 of the Regulations by requiring her to demonstrate that someone else had sole custody of the child in order to escape the operation of section 23. It is the Applicant's position that section 23 is only engaged when the applicant has full custody of the non-accompanying dependent, and that the exception would therefore apply if she had joint custody with her ex-husband.

19     The Applicant further submits that it was unreasonable for the Officer to find that the Applicant was caught by section 23 of the Regulations on the basis that she had not demonstrated that someone else had sole custody of her son. By demonstrating that she shares custody with her husband, and that her ex-husband does not consent to the examination, she has established that she is not in a position, legal or otherwise, to compel her son to undergo a medical examination. The Applicant has not seen or cared for her son since she left Vietnam, and it was therefore unreasonable for the Officer to fail to take into consideration that the Applicant did not have de facto custody of her son: Lee v MCI, 2007 FC 814 at para 15.

20     The Respondent contends that the Officer did not err in the interpretation of section 23 of the Regulations, as it was consistent with the interpretation that has been upheld by this Court. According to the jurisprudence, it is not the establishment of "shared custody" that is relevant for the purposes of section 23 of the Regulations, but whether the dependent child is in the legal custody of someone other than the applicant such that the applicant cannot exercise legal rights over the child with respect to his or her examination: See Ahumada Rojas v MCI, 2012 FC 1303 at paras 14-15, 17-18; Rarama v MCI, 2014 FC 60 at paras 16, 18, 21-22; Jankovic v MCI, 2003 FC 1482 at paras 40-53, citing Adesina v MCI, [1999] F.C.J. No. 1063 (TD).

21     Further, the Respondent submits that the Officer's decision not to waive the examination was well within the range of acceptable outcomes on the facts and law. The Applicant had failed to meet her burden to establish that she had arrived at the point of last resort per the case law, such that the medical exam requirement should be waived, as she had provided conflicting information with respect to her son's living arrangements and custody.

22     Despite the unclear and inconsistent information she provided to CIC, the evidence before the Officer still suggested that the Applicant had legal custody over her dependent son, as no modification to the Divorce Judgment was ever provided. Furthermore, it is unclear why the Applicant's parents could not have taken the Applicant's son for a medical examination, since they clearly had him in their care when they took him to the lawyer to obtain the Lawyer's Confirmation Letter.

VIII. Analysis

23     In my view, the Officer made no error in his interpretation of the Regulations, and his conclusion is within the range of possible acceptable outcomes in respect of the facts and law.

24     Pursuant to sections 11 and 38 of IRPA and subparagraph 72(1)(e)(i) of the Regulations, in order for a foreign national to become a permanent resident of Canada under the spouse in Canada class, the officer must be satisfied that the foreign national's family members, whether "accompanying" or not, are admissible on health grounds. As Respondent's counsel eloquently put it during the hearing, examination is the cornerstone of the immigration system. Section 11 of IRPA and subsection 72(1) of the Regulations make examination essential to the immigration process. Without complying with the examination requirement, a visa officer simply cannot know if there are underlying issues (medical, in this case).

25     Sections 38 and 42(a) of IRPA are intended, in part, to prevent foreign nationals from gaining entry to Canada and then sponsoring otherwise inadmissible family members whose care needs would place an excessive demand on Canadian health care and social services: See Lee, above, at para 3; Zhang v MCI, 2012 FC 1093 at para 16, aff'd 2013 FCA 168; Rarama, above, at paras 22, 29. Thus, the inadmissibility of an applicant's family members makes the applicant inadmissible as well, regardless of whether the applicant actually planned to leave his or her child in their home country or not: See IRPA, s 42(a); Zhang at para 14.

26     In this case, the Applicant had indicated that she wanted her son to come to Canada in the future (after originally indicating this was not the case). This was clear both from the email she had sent to her husband requesting that her son be sent for a medical examination, and from the fact that her immigration consultant requested that CIC not exclude her son from the possibility of sponsorship to come to Canada in the future.

27     However, section 23 of the Regulations takes into account the fact that not all applicants have the power to take their dependent children for the required medical examination: it specifies that an inadmissible dependent child of an applicant will only make the applicant inadmissible where the applicant has custody of that child or is legally empowered to act on behalf of that child: Regulations, s 23; Lee, above, at para 17.

28     The Respondent relies on paragraph 14 of Rojas, above, for the proposition that section 23 of the Regulations provides an exception to the requirement to have dependent children undergo a medical examination only where the children "are in the sole custody of a separated or former spouse." I do not read Rojas as exhaustively defining the exception in subparagraph 23(b)(iii). Rather, I find that the focus of today's inquiry is whether the Applicant has exhausted all avenues to try to get the dependent child examined and cannot reasonably do so.

29     In Rojas, Justice Zinn found that absent evidence that the applicant in that case had no custody of his children, it was reasonably open to the officer to find that the applicant had not exhausted all the avenues. Justice Zinn wrote:

·        14 I agree with the submission of the respondent that an officer must be satisfied that an applicant's family members are not inadmissible. Section 23 of the Regulations creates an exception regarding the admissibility requirements for applicants when their children are in the sole custody of a separated or former spouse. In order to take the benefit of that exception, applicants must provide documentary proof of custody arrangements for non-accompanying dependent children. The applicant failed to do this even after repeated requests. 

·        15 Section 23(b)(iii) of the Regulations renders a foreign national inadmissible if, by virtue of a court order, a written agreement, or the operation of law, he or she has custody of the non-accompanying dependent children and they are not confirmed to be admissible. In this case, as a result of the applicant's failure to adduce the necessary evidence, there was no finding by the officer that he did not have custody of these three children. It is only when and if an officer makes such a finding and determines that the children need not be examined, that a request would be made for the declarations which the applicant submitted, purporting to exclude his children from the family class. 

·        [...] 

·        17 The respondent's IP8 Manual specifies that if family members are "genuinely unavailable" an officer may proceed to a statutory declaration. It requires officers to be "open to the possibility that a client may not be able to make a family member available for examination." They are advised to decide on a case-by-case basis, but the IP8 Manual specifies that proceeding without the examination of all family members is to be a "last resort" and the applicant cannot himself choose not to have a family member examined. 

·        18 Absent evidence that the applicant had no custody of the children, I am unable to find that the officer erred or reached an unreasonable decision in finding that the applicant had not arrived at the point of last resort. It was reasonably open to the officer, given the evidence before him or her, to find that the applicant had not exhausted all avenues and to decline to proceed as provided for in IP8. 

30     This case, like Rojas, does not turn on whether or not the Applicant was required to provide proof that her child was in the "sole custody" of her former spouse in order to benefit from the exception created by section 23 of the Regulations.

31     Furthermore, CIC's "IP 8: Spouse or Common-law partner in Canada Class" Manual is clear, that the exception in which section 23 does not capture a dependent child is meant to be a last resort:

·        If family members are genuinely unavailable or unwilling to be examined, the consequences of not having them examined should be clearly explained [...] 

·        Officers should be open to the possibility that a client may not be able to make a family member available for examination. If an applicant has done everything in their power to have their family member examined but has failed to do so, and the officer is satisfied that the applicant is aware of the consequences of this (i.e., no future sponsorship possible), then a refusal of their application for non-compliance would not be appropriate. 

·        Officers must decide on a case-by-case basis, using common sense and good judgment, whether to proceed with an application even if all family members have not been examined. Some scenarios where this may likely occur include where an ex-spouse refuses to allow a child to be examined or an overage dependent refuses to be examined. Proceeding in this way should be a last resort and only after the officer is convinced that the applicant cannot make the family member available for examination. The applicant themselves cannot choose not to have a family member examined. 

·        [Emphasis added] (IP 8 Manual, p 20) 

While CIC manuals are not binding, they assist the Court in assessing whether a decision being reviewed was reasonable: Rarama, above, at para 23.

32     The Applicant's son in this case clearly fit into the language of section 23 and was captured by it, as the Divorce Judgment indicated that the Applicant has custody of her son and is legally empowered to act on his behalf: that Divorce Judgment, which has not been amended, awards the Applicant principal custody, with the husband having access. The Applicant chose to leave the child with her ex-husband when she came to Canada, although she still had rights to care for him (in Vietnam) if she wanted to. There is also some evidence that she allowed her parents to help with the child as well, as "guardians" (CTR, p 50).

33     The intention and requirements of the Act are to compel all family members to undergo a medical examination, and the focus is on whether, in this fact scenario, the principal applicant has exhausted all reasonable avenues to have her dependant child examined.

34     In this case, the Applicant did not provide sufficient proof that she could not make her son available for examination. While she claimed that her son was living with his father, and that his father refused to take him for a medical examination, she also provided a Divorce Judgment that clearly gave her legal custody of her son. It is significant in my view that she did not provide any of the following: evidence that the Divorce Judgment had ever been amended; evidence from her ex-husband that he refused to allow the son to undergo the medical examination (or any sworn statements speaking to these issues from Vietnam); evidence that she could not have visited Vietnam and taken her son to a medical examination; evidence that she legally required the consent of her ex-husband for her parents to take her son for the examination; or an explanation for why her parents did not take her son for the examination.

35     In my view, the Officer was completely reasonable in finding that the Act required the Applicant to have her son examined, as the Applicant had provided conflicting information on her son's custody and living arrangements, and had originally indicated that she did want him to accompany her to Canada in the future.

36     While the Applicant's counsel did an admirable job of strongly advocating for his client, the legal tests were simply too onerous for the Applicant to overcome in this case. The application for judicial review is accordingly dismissed.

IX. Proposed Certified Questions

37     The Applicant has proposed the following certified question:

·        Does Regulation section 23 capture an applicant who only has joint custody of their non-accompanying dependent child? 

The Respondent opposed the certification of this question, contending that Rojas has clearly answered any uncertainty in the interpretation of custody in the context of sections 42 of IRPA and 23 of the Regulations. I agree with the Respondent: the question does not meet the test required for certification. No question will be certified.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is hereby dismissed. No question will be certified.

DINER J.

FEDERAL COURT DISCUSSES CITIZENSHIP REQUIREMENTS, HOPES FOR RESOLUTION OF INCONSISTENT RESIDENcy TEST

The case below illustrates the difficulties in the interpretation of the residency requirements and the lack of certainty provided in the Citizenship Act. This inconsistency will hopefully be resolved if the new Citizenship Act sections dealing with residency requirements come into force. The Federal Court is visibly uncomfortable with the current lack of resolution in that area.

Arwas v. Canada (Minister of Citizenship and Immigration)

Between
Miguel Angel Slikas Arwas, Applicant, and
The Minister of Citizenship and Immigration, Respondent
And between
Karine Marie Christiane Wachter, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 1299

2014 FC 575

Dockets: T-1651-13, T-1652-13

 Federal Court
Ottawa, Ontario

LeBlanc J.

Heard: June 2, 2014.
Judgment: June 17, 2014.

(42 paras.)

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JUDGMENT AND REASONS

1     LeBLANC J.:-- These are appeals brought under section 21 of the Federal Courts Act, RSC 1985, c C-7, and paragraph 14(5) of the Citizenship Act, RSC 1985, c C-29, against the decision of a citizenship judge denying the applicants' applications for Canadian citizenship on the ground that they do not meet the residency requirement as defined by paragraph 5(1)(c) of the Citizenship Act (the Act).Given the overlap of the facts and arguments, these two appeals were heard, and are decided, together.

I. Background

2     The applicants are husband and wife. Mr. Arwas is a citizen of Venezuela. Ms. Wachter is a French citizen. Both became permanent residents upon arrival in Canada on April 13, 2006. They came from Trinidad and Tobago where the husband, a petroleum engineer, was employed. They applied for Canadian citizenship on December 15, 2010. As part of the conditions they had to meet in order to be granted Canadian citizenship, they needed to accumulate, within the four years immediately preceding the date of their citizenship applications, at least three years of residence in Canada.

3     That condition, embedded in paragraph 5(1)(c) of the Act, reads as follows:

·       5. (1) 

The Minister shall grant citizenship to any 

·       person who 

  

·       (a) makes application for citizenship; 

·       (b) is eighteen years of age or over; 

·       (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; 

...

* * *

·       5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois: 

·       a) 

en fait la demande; 

·       b) 

est âgée d'au moins dix-huit ans; 

·       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; 

[...]

4     During the four year residency assessment period applicable to them, which was from December 15, 2006 to December 15, 2010, the applicants were physically present in Canada a total of 866 days, in the case of Mr. Arwas, and of 879 days, in the case of Ms. Wachter. Those figures are not contested.

5     The applicants' citizenship applications were dismissed on August 7, 2103. Having opted for an interpretation of paragraph 5(1)(c) of the Act which requires being physically present in Canada for the minimum amount of time contemplated that provision (1,095 days out of 1,460), the citizenship judge found the applicants to be well short of that minimum threshold. As a result, he rejected their applications on the ground that they did not meet the Act's residency requirement.

6     The applicants claim that the citizenship judge committed a reviewable error by mixing qualitative and quantitative factors in his analysis. As the Court understands it, the applicants contend that the judge erred by resorting to qualitative factors in his quantitative analysis, something he need not, and could not, do. Alternatively, they claim that since he did resort to such factors, the citizenship judge was bound to proceed to a qualitative analysis of the residency requirement, something which might have allowed them to meet that requirement despite not having been physically present in Canada for at least 1,095 days out of 1,460 immediately preceding the filing of their citizenship applications.

7     The applicants seek an order quashing the citizenship judge's decision and sending the matter back for reconsideration by a different citizenship judge. They also seek full costs pursuant to Rule 400 of the Federal Courts Rules, SOR/98-106.

8     For the reasons that follow, these two appeals must fail.

II. Issue and Standard of Review

9     The only issue in these appeals is whether the citizenship judge erred in concluding that the applicants did not meet the Act's residency requirement and by dismissing, as a result, their applications for Canadian citizenship.

10     Appeals from decisions of citizenship judges are not judicial review proceedings per se although they are governed by the same rules of procedure (Rule 300(c) of the Federal Courts Rules). Such appeals used to take the form of de novo proceedings but it is no longer the case as of 1998. Before Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, which reshaped the standard of review doctrine applicable in the field of administrative law, there was a consensus amongst the judges of this Court that the standard of review on appeal of citizenship judges' decisions regarding the residency requirement was reasonableness simpliciter. It was understood that the question of whether a person meets that requirement was a mixed question of fact and law for which citizenship judges were owed some deference given their special degree of knowledge and experience (Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 981, at para 6, [2005] F.C.J. No 1204 (QL); Rizvi v Canada (Minister of Citizenship and Immigration), 2005 FC 1641 at para 5, [2005] F.C.J. No 2029 (QL); Canada (Minister of Citizenship and Immigration) v Takla, 2009 FC 1120 at para 25, 359 FTR 248).

11     As a result of Dunsmuir, above, the reasonableness simpliciter standard, together with the patent unreasonableness standard, were collapsed into a single form of reasonableness review, the standard of reasonableness (Dunsmuir, above at paras 44 and 45; Takla, above at para 30).

12     The applicants claim that, when the residency requirement in a citizenship appeal is at play, the standard of reasonableness calls for 'qualified deference'.

13     For the past three decades, there has been an ongoing debate within this Court as to what paragraph 5(1)(c) of the Act exactly means. This, in turn, has generated a debate as to the applicable standard of review of a citizenship judge's decision to opt for the interpretation that will form the basis of his or her analysis of the residency requirement in a given case. Some members of this Court say that this standard is correctness (Donohue v Canada (Minister of Citizenship and Immigration) 2014 FC 394 at para 13, [2014] F.C.J. No 443 (QL); El Ocla v Canada (Minister of Citizenship and Immigration) 2011 FC 533 at para 18, 289 FTR 241; Dedaj v Canada (Minister of Citizenship and Immigration) 2010 FC 777, 372 FTR 61). Others say it is reasonableness (Chowdhury v Canada (Minister of Citizenship and Immigration) 2009 FC 709 at para 24, 347 FTR 76; Raad v Canada (Minister of Citizenship and Immigration) 2011 FC 256 at para 21, [2011] F.C.J. No 306 (QL); Gavrilutav Canada (Minister of Citizenship and Immigration) 2013 FC 705 at paras 24 to 27, [2013] F.C.J. No 306 (QL); Shubeilat v Canada (Minister of Citizenship and Immigration) 2010 FC 1260 at para 14, 381 FTR 63).

14     The competing jurisprudential schools that have emerged from that debate have been described this way by Madame Justice Snider, in Sinanan v Canada (Minister of Citizenship and Immigration) 2011 FC 1347, [2011] F.C.J. No 1646 (QL):

·       [6] The Federal Court has, over the years, endorsed three different approaches to the question of how to interpret the words "resident" and "residence" in the legislation. Briefly stated, the three lines of jurisprudence fall into two categories: the "quantitative approach" and "qualitative approach". The quantitative approach is encompassed in the Re Pourghasemi test, applied by the Citizenship judge in this case, which asks whether the applicant has been physically present in Canada for 1,095 days out of the last four years. This has been referred to as the "physical presence" test. The qualitative approach was articulated in Re Papadogiorgakis, above, and refined in Re Koo, above. The test in Re Koo, as first utilized by Justice Reed, allows the citizenship judge to analyze six factors to determine whether an applicant has met the residence requirement by his or her "centralized ... mode of existence", even where the applicant falls short of the 1,095-day requirement. 

·       [7] In Lam v Canada (Minister of Citizenship and Immigration) (1999), 164 FTR 177 (QL), 87 ACWS (3d) 432 (TD), Justice Lutfy noted the divergence in the jurisprudence and concluded that, if a citizenship judge adopted any one of the three conflicting lines of jurisprudence, and if the facts of the case were properly applied to the principles of that approach, the citizenship judge's decision should not be set aside. 

·       [8] In the 12 years since Lam, the divergence in the Court has not been resolved. Over the past two years, some of my colleagues have attempted to galvanize the Court around one or the other of the tests. In Canada (Minister of Citizenship and Immigration) v Takla, 2009 FC 1120, 359 FTR 248, Justice Mainville determined that the qualitative approach should be the only test. In contrast, Justice Rennie, in Martinez-Caro v Canada (Minister of Citizenship and Immigration), 2011 FC 640, 98 Imm LR (3d) 288 [Martinez-Caro], carried out a careful analysis of the proper statutory interpretation of s 5(1) (c) of the Act and concluded that the physical presence test was the only correct test. 

15     Recently, Chief Justice Crampton, in Huang v Canada (Minister of Citizenship and Immigration) 2013 FC 576, [2013] F.C.J. No 629 (QL), revisited the issue and observed that the jurisprudence of this Court pertaining to these three tests remains divided and unsettled with the result that deference should be accorded to a citizenship judge's decision to apply any of these tests. He held that this approach was consistent with this Court's dominant view that the standard to be applied in reviewing citizenship decisions is reasonableness (Huang, above at paras 24 to 26).

16     In such context, I share the view that the standard applicable to the review of citizenship decisions is reasonableness, without need for any sort of qualification, and that this standard applies to the choice of the residency test made by the citizenship judge. This means, as is well established, that the review analysis is concerned with the existence of justification, transparency and intelligibility within the decision-making process and also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir, above at para 47; Chowdhury, above at para 28; Raad, above at para 22).

17     It is true that Parliament, when it enacted paragraph 5(1)(c) of the Act, intended one meaning in particular. However, ascertaining the legislator's intent is not always an easy task as evidenced by the complexity of our rules of statutory construction. My own view on this is that Parliament meant that the residency requirement shall be met by being physically present in Canada for a minimum period of time, ensuring thereby that an applicant's establishment in Canada is assessed by way of an objective marker that does allow for absences from Canada but that does it while establishing clear limits with regards to the amount of time an applicant can spend outside Canada. In this regard, I fully endorsed the reasoning of Mr. Justice Rennie in Martinez-Caro v Canada (Minister of Citizenship and Immigration) 2011 FC 640, 391 FTR 138, and that of Mr. Justice Muldoon in Pourghasemi (Re) (FCTD) [1993] 62 FTR 122.

18     That being said, in the area of statutory interpretation, as in others, competing views are the norm, not the exception, and the resolution of these issues is normally assured through the judiciary's appeal system. Here, however, as the Chief Justice and other members of this Court have pointed out on several occasions, Parliament has made the conscious choice that there be no appeal of a decision of this Court on an appeal from a decision of a citizenship judge (see paragraph 14(6) of the Act).

19     This has consequences. Here, this means that three reasonable interpretations of the Act's residency requirement "that have a long and rich heritage in this Court's jurisprudence" (Huang, above at para 25), have co-existed for quite some time without being put to the test through an appeal process.

20     But this is not inconsistent with the stare decisis principle, which was created, as is well known, to ensure consistency and certainty in the law. This principle, as it is understood and applied today in Canada, means only that prior decisions of higher courts are binding on lower courts of the same jurisdiction, for neither the Supreme Court of Canada nor many of the country's courts of appeal consider themselves bound by their own previous decisions. For lower courts, this means that they are free to analyze the reasons given in their own previous decisions and to decide whether to apply the precedent or to distinguish the rule contained therein, including matters of statutory interpretation (Woods Manufacturing Co. Ltd. v The King, [1951] SCR 504 at p 515, 1951 CanLII 36 (SCC); Régie des rentes du Québec v Canada Bread Company Ltd. (2013), 2013 SCC 46 at para 63, [2013] 3 SCR 125; Corlac Inc. v Weatherford Canada Ltd, 2012 FCA 261 at para 18, [2012] F.C.J. No 1295 (QL).

21     Therefore, as long as Parliament does not legislate to clarify the citizenship residency test or to create some form of an appeal process, or that this Court does not settle on one interpretation of the Act's residency requirement, therefore providing for a unique test and analysis in this area, the reality of this Court's jurisprudence is that it offers citizenship judges three possible tests when assessing whether a citizenship applicant meets that requirement. In these circumstances, it can hardly be said that a citizenship judge's decision to opt for one of these three tests does not fall within a range of possible, acceptable outcomes which are defensible in respect of the law.

22     This situation is less than optimal from the standpoint of ensuring consistency and certainty in the law but this was foreseeable when Parliament opted to invest this Court with the final say in citizenship matters. Some say that it is somewhat incongruous that the outcome of citizenship applications be determined on analysis and tests that differ from one judge to the next (Takla, above at para 47). As I said, this is far from a perfect situation but I nevertheless see nothing wrong in principle to the present state of affairs.

23     I therefore join ranks with those of my colleagues who share the view that citizenship judges are entitled to choose which test they desire to use among the three tests developed by this Court and not be in error for choosing one over the other (Choudhury, above at paras 71 and 72; Pourzand v Canada (Minister of Citizenship and Immigration) 2008 FC 395 at para 16, [2008] F.C.J. No 485 (QL); Xu v Canada (Minister of Citizenship and Immigration) 2005 FC 700 at paras 15 and 16, [2005] F.C.J. No 868 (QL); Rizvi v Canada (Minister of Citizenship and Immigration) 2005 FC 1641 at para 12, [2005] F.C.J. No 2029 (QL); Shubeilat, above at para 30). That choice does not have to be rationalized (Sinanan, above at para 11); it is a matter of discretion (Gavriluta, above at para 27).

24     In the end, citizenship judges are called upon to apply the chosen test consistently and to reach in any particular case a conclusion that falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law (Irani, above at para 14).

25     The role of this Court, in reviewing such decisions, is therefore not to substitute its opinion for that of the citizenship judge but to assess whether that judge applied the residency test chosen properly and in a coherent fashion (El Falah v Canada (Minister of Citizenship and Immigration) 2009 FC 736, at para 14; Shubeilat, above at para 15).

III. Analysis

26     As indicated above, the applicants claim that the citizenship judge erred in assessing the residency requirements by mixing qualitative and quantitative factors. More particularly, they contend that the judge was not entitled to resort to qualitative factors in his quantitative analysis, namely to facts outside the relevant residency assessment period. Alternatively, they say that having resorted to such factors, the citizenship judge was bound to proceed to a qualitative analysis of their residency situation, which he failed to do.

27     The applicants are right when they assert that it is a reviewable error for a citizenship judge to assess the residency requirement in a given case on the basis of more than one test or to proceed to a quantitative or physical presence analysis by counting absences from Canada that occurred outside the relevant assessment period.

28     However, this is not what happened in this case.

29     First, it is clear that the citizenship judge opted to assess the residency requirement on the basis of one test and one test only, which is that of physical presence developed in Pourghasemi, above. The citizenship judge's decision in this regard is transparent and intelligible. There is no mention whatsoever in his analysis of qualitative factors. Furthermore, it is clear that his quantitative assessment was limited to the four years immediately preceding the date of the applicants' citizenship applications, that is to the period of December 15, 2006 to December 15, 2010. It is worth in this regard reproducing that portion of the decision:

·       "Analysis: 

·       In deciding to whether you satisfy the residence requirement of Section 5(1)(c) of the Act, I have chosen to adopt the analytical approach used by the Honourable Mr. Justice Muldoon in Re Pourghasemi. In Pourghasemi, [1993] F.C.J. No. 232 (T.D.), Muldoon J. considered that it was necessary for a potential citizen to establish that he or she has been physically present in Canada for 1,095 days during the relevant four-year period. 

·       "It is clear that the purpose of paragraph 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 Canadian -- 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. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook. If the criterion be applied to some citizenship candidates, it ought to apply to all.

·       ...

·       So those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadian by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves. It is not something we can do while abroad, for Canadian life and society exist only in Canada and nowhere else." 

·       After carefully reviewing all the documentary and oral evidence presented by you at the hearing, I am not satisfied that you meet the residence requirement of the Citizenship Act. Unfortunately, the length of time you have been absent from Canada during the period under review is substantial. In the four years previous to the date of your application, you were present in Canada only 865 days, and you were absent 595 days. You are short a significant 230 days of the minimum 1,095 days required by Section 5(1)(c) of the Citizenship Act. The time you have spent in Canada is insufficient to demonstrate that you fulfil the intent of Act. 

·       I have no doubt you might eventually become an excellent Canadian citizen. I regret, however, I cannot approve your application for citizenship. When you meet the residence requirement of the Citizenship Act, I invite you to consider re-applying." 

30     The present case is distinct from the two main cases relied upon by the applicants, Chowdhury, above, and Cheung v Canada (Minister of Citizenship and Immigration) 2012 FC 348, [2012] F.C.J. No 428 (QL). Indeed, in both cases, the citizenship judges failed to clearly state the residency test they were applying while there were mentions of both quantitative and qualitative factors in the actual analysis. Here, not only was the test used by the citizenship judge clearly stated but the applicants also admit, at paragraph 22 of their written submissions, that the citizenship judge did not take into account any qualitative factors and did not, as a result, proceed to an assessment of their ties and connections with Canada.

31     What is clear also from the impugned decision is that the citizenship judge, contrary to the applicants' assertions, did not consider dates outside the relevant residency assessment period for the purposes of establishing whether the applicants had met the physical presence test.

32     The judge did provide, in describing the evidence that was before him, a summary of the husband's employment history, which was the main reason why the applicants were in and out of the country on a certain number of occasions from the date they landed in Canada in April 2006 to the husband's transfer to Spain in March 2011. However, there is no indication whatsoever that the citizenship judge counted absences outside the relevant residency assessment period in order to conclude as he did on the applicants' failure to meet the residency quantitative test. It is not an error for citizenship judges to refer to dates outside relevant residency assessment period, provided they do not actually count them in their quantitative analysis (Sotade v Canada (Minister of Citizenship and Immigration) 2011 FC 301 at para 15, [2011] F.C.J. No 383 (QL)).

33     Likewise, the case of Raad, above, is of no assistance to the applicants in this regard. In that case, the citizenship judge had actually counted absences outside the relevant residency period and had, on top of that, inaccurately assessed the number and length of these absences. This is not the case here. The same can be said of Shakoor v Canada (Minister of Citizenship and Immigration) 2005 FC 776, [2006] F.C.J. No 972 (QL), where it was unclear whether the citizenship judge in that case had taken into account evidence of absences outside the relevant residency assessment period. Again, this is not the case here.

34     Finally, the applicants' argument that the citizenship judge failed to consider qualitative factors is without merit. This contention is based on the fact that the applicants were required by a citizenship officer to fill a Residence Questionnaire. This was done one year prior to their interview before the citizenship judge. This questionnaire is a standardized document that is routinely sent to citizenship applicants who do not appear to have accumulated the minimum number of days of physical presence in Canada.

35     This is entirely consistent with the way the processing of applications for Canadian citizenship is set up in the Act and the Citizenship Regulations, SOR/93-246. It is the Minister, through citizenship officers, who gathers the information citizenship applicants have the onus of providing and causes to be commenced the inquiries necessary to determine whether they meet the requirements of the Act (Citizenship Regulations, above section 11). Section 17 of the Act even empowers the Minister to suspend the processing of a citizenship application where he is of the opinion that there is insufficient information to ascertain whether an applicant meets the requirements of this Act.

36     It is only when those inquiries are completed that a citizenship application and the materials in support of it is referred to a citizenship judge for consideration (Citizenship Regulations, above at subsection 11(5)).

37     Consistent with that regulatory process, the Residence Questionnaire was sent to the applicants in this case way before the matter was referred to the citizenship judge. Although this questionnaire sought some information of a qualitative nature, this is not indicative, and cannot be indicative, of how and on what basis the citizenship judge was to assess the residency requirement. This was the first of a two-step process leading to the referral of the applicants' file to the citizenship judge. Also, no legitimate expectations that the applicants' applications would be reviewed by way of a qualitative test could reasonably flow from this process (Canadian Union of Public Employees (CUPE) v Ontario (Minister of Labour), 2003 SCC 29 at para 131, [2003] 1 SCR 539; Donohue, above at paras 31 and 32).

38     The information gathering process which precedes the referral of a citizenship application to a citizenship judge for consideration cannot have a binding effect on the way the application is to be decided. Once seized of the matter, it is up to the citizenship judge to opt for the test he wishes to apply and to require from the applicant further evidence, if he or she feels there is a need for it.

39     In the present case, the citizenship judge was therefore under no obligation to conduct an analysis of the applicants' residency situation by way of a qualitative test. There was no reviewable error on his part by not doing so.

40     The same can be said of the notes taken by the citizenship judge. There was nothing wrong for the judge in providing in his notes an overview of the status of various aspects of the applicants' application (Zheng v Canada (Minister of Citizenship and Immigration) 2007 FC 1311 at para 11, [2007] F.C.J. No 1686 (QL)). This did not change the fact that he clearly and transparently opted to dispose of the applicants' applications on the basis of the physical presence test.

41     The two appeals are therefore dismissed. Since the respondent did not seek costs, none will be awarded.

42     These reasons will be filed in Court file number T-1651-13 and a copy placed in Court file number T-1652-13.

JUDGMENT

THIS COURT'S JUDGMENT is that the appeals in these two cases are dismissed, without costs.

LeBLANC J.