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
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.
Dockets: T-1651-13, T-1652-13
Federal Court
Ottawa, Ontario
LeBlanc J.
Heard: June 2, 2014.
Judgment: June 17, 2014.
(42 paras.)
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:
The Minister shall grant
citizenship to any
· (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:
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
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:
en fait la
demande;
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:
un demi-jour pour chaque
jour de résidence au Canada avant son admission à titre de résident
permanent,
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.
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