This is a very thorough and in-depth analysis of the current state of disarray of citizenship tests in the context of judicial review, and it reflects the court's frustration with the current state of the law.
Canada (Minister of Citizenship and Immigration) v.
Naveen
Between
The Minister of Citizenship and Immigration, Applicant, and
Fatima Naveen, Respondent
[2013] F.C.J. No.
1127
2013 FC 972
Docket: T-1959-12
Federal Court
Toronto, Ontario
Annis J.
Heard: July 8, 2013.
Judgment: October 18, 2013.
(68 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
ANNIS J.:--
1. Introduction
1 This
is an application by the Minister of Citizenship and Immigration [the Minister]
under section 14(5) of the Citizenship Act, RSC 1985, c C-29 [the Act ] and section 21 of the Federal Courts Act, RSC 1985, c F-7, to appeal and have set aside the decision of a
Citizenship Judge [the Judge] dated August 31, 2012 [the decision], wherein the
Judge granted the Respondent's application for citizenship pursuant to section
5 of the Act.
2 The
Applicant claims that the Judge failed to consider whether the Respondent had
established a residence in Canada before assessing whether her physical
absences could count towards residency and that there is no evidence on the
record that indicates she could have met this requirement, with which
submissions I am in agreement.
3 I
am in further agreement with the Applicant's other arguments that there was no
consideration of the issue of dependency of the Respondent or evidence to
support such a finding. Similarly, I agree that the Judge misapprehended the
evidence in concluding that the Respondent always returned to Canada at every
opportunity, when the evidence appears to be to a contrary effect.
4 With
respect to any error in the residency tests, most significantly I find that,
although the Judge could take guidance from Re
Papadogiorgakis, [1978] FCJ No 31 (QL), [1978] 2 FC 208
(TD) [Papadogiorgakis ], he
failed to properly discern its intention and import in imputing to it an
interpretation of residency bearing no relationship to the facts and principles
enunciated in that case.
5 However,
the misinterpretation of the ratio of Papadogiorgakis
dates back more than 20 years giving rise to alternative residency tests and
therefore no fault can be attributed to the Judge for the misstatement of its
principles.
6 When
Papadogiorgakis is carefully
analyzed, there is no basis for any divergence in residency tests. The case
states a requirement to adhere to the three-year physical residency rule except
in limited exceptional circumstances. These generally do not permit the
imputation of residency in situations exceeding six to nine months absence from
the country, except on the basis of conclusive evidence proving that the
Applicant's living circumstances demonstrate the reality of a centralized mode
of residence in Canada even though temporarily living abroad.
2. The Facts
7 The
Respondent in this case, Ms. Fatima Naveen, was born in Pakistan in 1982. In
2001, aged 19, she was accepted as an international student at Pomona College
in Claremont, California. She studied there until graduating in 2005. During
that time she spent a semester at Oxford University, UK, in 2003 and two months
as an intern at the Aga Khan University Hospital in Karachi, Pakistan, in
2003-2004. She was offered a graduate fellowship at Cambridge University, UK,
in 2005 but declined it. She applied to medical schools in Canada but was
rejected by all of them. She was accepted by Harvard Medical School, and went
there. After graduation, she continued on to a residency program in Boston,
Massachusetts.
8 The
Respondent's father was admitted to Canada as a permanent resident in the
Entrepreneur class in August 2004. He and the Respondent's mother and brother
have settled in Richmond Hill, Ontario. Her parents both work in Ontario, while
her brother was completing undergraduate studies at McGill University at the
time of application. Her sister died in a tragic laboratory accident at the
University of California, Los Angeles (UCLA) in early 2009 and is buried in
Ontario.
9 Ms.
Fatima Naveen visited Canada in December 2002-January 2003 and again in March
2003. On September 17, 2004, she became a permanent resident of Canada. She
spent four days in Canada, then returned to college in California. After that
date, she visited her family in Canada during school breaks and spent other
vacation time in the U.S. and in Pakistan. She never worked in Canada, but did
work in the U.S. as a college residence advisor, a teaching assistant, and a
research mentor. By the date of application, the parties calculate that she had
spent either 143 days or 159 days, as stated alternatively in her documents,
being physically present in Canada in the preceding four years.
10 On
December 15, 2007, Ms. Fatima Naveen applied for citizenship. Although she fell
short of the Act's requirement
(at section 5(1)(c)) of 1,095
days of physical presence in Canada in the four years preceding her
application, she submitted that she had centralized her ordinary mode of living
in Canada with her family during her years as a student in the U.S., had
demonstrated many indicia of establishment in Canada, and had always had the
intention of settling in Canada upon completion of her medical training.
11 The
Citizenship Judge accepted these arguments, commenting:
· Based on Justice Thurlow's analysis in Re
Papadogiorgakis, I am satisfied the client has met the
residency requirement of the Act.
She resides in Canada wither family and is studying medicine at Harvard Univ.
She returns to Canada at every opportunity she gets and plans to practise
medicine in Canada. Approved.
· [...]
· Based on Justice Thurlow's analysis in Papadogiorgakis and Justice Reed's analysis in Re Koo, I am satisfied that she has centralized her mode of residence in
Canada. She has strong ties to Canada, in fact stronger than any other country
in the world. Despite her lack of physical presence, I am satisfied that based
on above analysis she meets the 5(1)(c) requirement of the Act.
· Note: While studying in USA, she has always returned to Canada at
every opportunity she gets and is planning to practice medicine in
Canada.
· [...]
3. Issues
12 The
issues raised by the applicant are whether:
· a.
The Citizenship Judge
erred by failing to have regard to the evidence that demonstrated that the
Respondent had never established residence in Canada, before assessing whether
her physical absences could count towards residency in Canada; and
· b.
The Citizenship Judge
erred by blending the residency tests - which in turn raises the issue of the
proper interpretation of Papadogiorgakis.
4. Standard of review
13 The
Respondent submits that a Citizenship Judge's determination as to residency is
reviewable on the more deferential standard of reasonableness. In the recent
case of Martinez-Caro v Canada (MCI), 2011 FC 640 [Martinez-Caro ], where the applicant had argued that the definition of residency
in the Act did not require
physical presence in Canada, Justice Rennie analyzed the issue of citizenship
residency requirements in detail. He concluded at paras 36-52 that the proper
standard of review is correctness where the Citizenship Judge is interpreting
the statutory residency requirement, as opposed to applying it. I agree. The
criteria for citizenship are of broad general importance to the legal system,
as citizenship status is integral to the operation of many statutes.
14 However,
the other issues put before the court in this case concern the Citizenship
Judge's assessment of the evidence and the application of the chosen tests,
which attract a standard of review of reasonableness.
5. Analysis
· A. Initial Residency, Dependency on Family and Continued Intention to
Become a Canadian Citizen
15 The
present case must be set aside on several grounds. The first problem with the
Citizenship Judge's decision is its failure to consider whether the Respondent
demonstrated by objective facts that she had initially established a residence
in Canada. It is common ground in this Court that the initial establishment of
a residence is a prerequisite for a citizenship application (Jreige v Canada (MCI), [1999] FCJ No 1469
(QL) (TD) at paras 23-25; Ahmed v Canada (MCI), 2002 FCT 1067 at paras 4-5; Canada (MCI) v
Camorlinga-Posch, 2009 FC 613, at para 18; Canada (MCI) v Takla, 2009 FC 1120, at para
50). Given the very limited initial stay of the Respondent in Canada, the Judge
was required to consider this issue, and failed to do so.
16 Secondly,
this case falls into what I would describe as an "outlier" subset of
residency cases involving students with limited physical presence in Canada due
to their attendance at universities abroad. For instance, the situation is it
similar to that in Re Cheung,
[1990] FCJ No 11 (QL) (TD), where the appellant left Canada four days after
establishing a permanent residence at her family's home to complete her medical
degree and subsequently spent only a total of 81 days in Canada and 1,240 days
in Hong Kong in the period before applying for Canadian citizenship, yet was
successful in the application.
17 In
the student cases, the courts have minimized the importance of physical
presence in Canada as a secondary consideration. Instead they have treated an
inferred intention to return to Canada as the salient factor. In effect, these
decisions piggyback the students' residency on that of their families. So long
as there is a strong family nexus and a state of dependency of the student, the
requirements of section 5(1)(c)
are considered to have been met.
18 The
dependency of the student on the family is a key factor contributing to the
implied intention to return to Canada. See for instance Ng
v Canada, [2001] FCJ No 55 (QL) (TD), where Justice
Hansen allowed the appeal on the basis that the Citizenship Judge did not
consider the issue of the dependency of the student on the parents who were
paying for the applicant's education. At paragraph 10 of its reasons the Court
stated:
· 10 In the present case, the Citizenship Judge did not acknowledge
there is case law that speaks to situations similar to this one: where the
applicant is a dependent student of parents in Canada, who were paying for the
applicant's education and to whose home the student returns during school
vacations. [...]
19 The
same complaint is made in this appeal, except that this time it comes from the
Minister. There is no evidence on the situation of dependency of the Respondent
on her parents to subsidise her education or otherwise.
20 The
case law also points out that in situations of students studying abroad, there
is a requirement that they demonstrate a commitment to return to Canada at
every opportunity, see Chan v Canada (MCI),[1998] FCJ No 1796 (QL) (TD); Canada (MCI) v
Sze, [2000] FCJ No 351 (QL) (TD). In this regard, the
Citizenship Judge misapprehended the evidence in concluding of the
Respondent"[w]hile studying in USA, she has always returned to Canada at
every opportunity she gets...".
21 The
evidence demonstrates that during at least two summers of her medical
residency, the Respondent did not return to Canada immediately, remaining
absent for the majority of the time in question. Given her very short initial
stay in the country, any failure to return to Canada when opportunities availed
themselves undermines the implied intention to establish continued residency in
Canada.
22 For
all of the foregoing reasons, the Citizenship Judge's decision must be set
aside. If I were to stop at this point I would send the matter back with
directions to properly determine the three circumstances described, failing
which the Respondent's request for Canadian citizenship must be rejected.
However, I have greater concerns with this case which relate to the appropriate
residency test to apply in citizenship cases.
· B. The Need for Significant Physical Presence in Canada
23 While
I am able to conclude that the Citizenship Judge's decision must be set aside
for reasons unrelated to which test to apply, I think it necessary for me to
decide on the appropriate definition of"residence" in section 5(1)(c) in order to provide directions to the
Judge conducting the new hearing.
24 I
have already alluded to my discomfiture with the line of cases that permit the
acquisition of Canadian citizenship with little physical presence in the
country such as are the facts of this case. The Applicant made submissions
urging me to adopt a strict interpretation of the residency requirement in
section 5(1)(c). This argument
was in reference to the fact that the Federal Court has interpreted
"residence" by invoking three tests commonly referred to as the
"Canadianization test", the "centralized mode of existence
test" and the "quality of attachment test".
25 I
have difficulty distinguishing between the latter two tests except by the
result. These were the source of complaint about the Judge's blending of tests.
Either the second or the third test would permit the acquiring of Canadian
citizenship with a significantly reduced physical presence of less than the
three years stipulated in section 5(1)(c).
26 Moreover,
as there is no right of appeal of the Federal Court's decisions, the issue
remains unsettled leaving Judges free to choose which of the three they prefer
to apply to determine an appeal. This untenable situation has received much
comment from the Court. See Chief Justice Crampton's comments in Huang v Canada (Minister of Citizenship and Immigration), 2013 FC 576, at para 2, seeking legislative intervention. See also
the recent suggestion by Justice Hughes in Dina v Canada
(MCI), 2013 FC 712, at para 9, that the Citizenship
Commission should consider referring a question to this Court under section
18.3(1) of the Federal Courts Act, noting that any decision of this Court could then be appealed to
the Federal Court of Appeal.
27 Fortunately,
my decision on which test to apply is much assisted by the reasons of Justice
Rennie in Martinez-Caro. Justice
Rennie provides persuasive grounds supporting an interpretation of residency in
section 5(1)(c) that would
necessitate the demonstration of a sufficient degree of
"Canadianization"by physical presence in the country, as previously
described in Re Pourghasemi,
[1993] FCJ No 232 (QL) (TD) [Pourghasemi ]. He explains that on a plain and ordinary reading, Parliament has
expressly defined the amount of latitude allowed. Parliament has prescribed
that over the course of 1,460 days, applicants for citizenship must accumulate
at least 1,095 days of residence; this is not a test of their intentions, but a
quantitative analysis of their actions. Furthermore, the statute expressly
provides for exceptional circumstances in which days spent outside Canada
nonetheless count towards residence, and also expressly provides at section
5(4) for a procedure to recommend to the Minister that the requirement for
physical presence be waived"in cases of special and unusual hardship or to
reward services of an exceptional value to Canada." This provision would
be redundant if a Citizenship Judge could simply waive the requirement.
28 I
also agree with Justice Rennie's reliance upon the analysis of Justice Nadon
referred to in Martinez-Caro at
para 29:
· 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.
· C. Re-analysis of Re Papadogiorgakis and Re Koo
29 Despite
the foregoing endorsement of Martinez-Caro, it nevertheless remains that Justice Thurlow, a highly respected
Court of Appeal judge, admittedly sitting as Associate Chief Justice in the
former Trial Division at the time, set out his interpretation of the residency
terms of the Citizenship Act
which was supposedly
subsequently applied in cases such as Re Koo, [1992] FCJ No 1107 (QL) (TD) [Koo ]. In this regard, I am in agreement with Justice Rennie's
conclusion that Papadogiorgakis
and the definition of residency by Justice Thurlow setting out what other
courts describe as the "centralized mode of existence" test was the
point at which the jurisprudence in this court began to diverge (Martinez-Caro, at para 14).
30 This
said, it would appear that a major element of the problem of the divergence in
the assorted residency tests stems from early inaccurate interpretations of Papadogiorgakis. These cases greatly
understated the number of days of physical presence of the applicant Mr.
Papadogiorgakis in Canada, besides ignoring the Court's indication that only a
very limited and conservative exception would be made to the three-year
physical presence residency rule.
31 The
first and most significant mischaracterization of
Papadogiorgakis is the conclusion that the applicant
was found to meet the residency requirements of section 5(1)(c) with only 79 days of physical presence in the country. This misstatement starts
as early as the Koo decision and
is repeated throughout numerous cases, including recent ones such as in Canada (MCI) v Salim, 2010 FC 975 at para
12, and Martinez-Caro, at para
14.
32 The
same misapprehension of Papadogiorgakis appears to have been made at paragraph 5 of Pourghasemi: "Even so, the judgment of the former Associate Chief Justice
in Papadogiorgakis stretches the
meaning of paragraph 5(1)(c) of
the present Citizenship Act almost beyond recognition, if its clear purpose be
recognized and invoked." Pourghasemi, of course, is the foundational case enunciating the
"Canadianization" test.
33 While
recognizing some of the ambiguities in the reasons, a careful examination of Papadogiorgakis reveals that Mr.
Papadogiorgakis had as many as 921 days in Canada, leaving him only 174 days, about six
months, short of the 1,095-day requirement.
34 Because
of the manner that the facts were set out in Papadogiorgakis, there is some scope for confusion in the calculation of the number
of days the applicant resided in Canada. I set out below portions of its
relevant paragraphs with my count of days the applicant was present in Canada
[my emphasis throughout].
· [3] [...] He entered Canada on a student
visa on September 5, 1970, and was admitted for permanent residence on May 13,
1974. [...] [H]e established a relationship with a
friend and the friend's parents, and in May 1974 moved to their home at Tusket,
Nova Scotia. From that time until January of 1978, he had a room in their home.
[...]
Prior to permanent residence = 1,188 days, September 5, 1970 - December 6,
1973 [September 5, 1970 was Day 248 of 365; December 6, 1973 was Day 340 of
365, so 117 days in 1970 + 365 days in 1971 + 366 days in 1972 + 340 days in
1973].
· [4] The material period for the purposes of his application is from December 6, 1973, to December 6, 1977. In
the first part of that period, that is to say, from December
6, 1973, to May 13, 1974, a matter of some 158 days, he
was resident in Canada but of this he can count only 79
days towards the three years necessary to meet the
requirement, as this was residence before his admission
to Canada for permanent residence.
= 79 days, December 6, 1973 - May 13, 1974.
· [5] Between May 13, 1974, and December 6, 1977, he was absent from Canada on a number of
occasions. First he attended the university in Massachusetts from January 28, 1976, to mid-June of that year [1976], a period of
some four and a half months constituting the university semester. He then returned to Tusket, Nova Scotia, but from July 28 to August 28 [1976] was absent on a vacation.
= 625 days, May 13, 1974 - January 28, 1976 [May
13, 1974 was Day 133 of 365; so 232 days in 1974, 365 days in 1975, and 28 days
in 1976].
= About 43 days, mid-June 1976 - July 28, 1976
[June 15, 1976 was Day 167 of 366; July 28, 1976 was Day 210 of 366].
· [6] From early in September to mid-December
[1976] and from late January 1977 to August 1977, he again attended the
University of Massachusetts but returned to Tusket for the [1976] Christmas
break. He also returned there on two weekends of each month while attending the
university. His only purpose in going to Massachusetts
was to pursue his studies and, in fact, he emerged at the end of the period,
consisting of some thirteen months in all, with degrees as Master of Business
Administration and Master of Hotel, Restaurant and Travel Administration. He
was not employed there at any time.
= About 10 days, August 28, 1976- early in September 1976 [logically, at least five
days to make it into September, and likely until the end of the Labour Day
weekend on Monday night, September 6, 1976].
= About 40 days, mid-December 1976 - late January 1977 [December 15, 1976 was Day
350 of 366; Monday, January 24, 1977, the beginning of the last full calendar
week in that month, was Day 24 of 365].
= About 48 days; four days (two weekends) per month over the course of twelve
months, September 1976 to August 1977.
· [8] Between October 4, 1977, and December 3,
1977, he was absent from Canada on a further vacation.
= Up to 73 days, August 1977 to October 4, 1977 [August 1, 1977 was Day 213 of 365;
October 4, 1977 was Day 286 of 365].
= 3 days, December 3, 1977 to December 6, 1977.
Total: 79 + 625 + 43 + 10
+ 40 + 48 + 73 + 3 equals as many as 921 days, leaving him only 174 days, about six months, short of the
1,095-day requirement.
35 In
fact the 79 days alluded to at para 2 of Koo- " [...] In the Papadogiorgakis case, a student who had been physically present in Canada for only
79 days during the relevant four-year period was determined to have fulfilled
the residence requirement" - actually described the 158 days that occurred
at the beginning of the four years before the applicant became a permanent
resident, which count as half days under the Act.
36 Residency
based on no more than 79 days of physical presence in lieu of a statute-decreed
1,095 days constitutes a radical interpretation by any measure in a legal
system that traditionally functions inductively and by incremental steps. It
also constitutes a radical difference even from 921 days. It is clear, that on
the day count alone, Justice Thurlow did not intend to rewrite the statutory
residency requirements in this manner.
37 Secondly,
in reconsidering Papadogiorgakis,
one is struck by the inconsistency of the reference in Koo to Justice Thurlow's having found residency in Papadogiorgakis based on a mere 79 days of
physical presence in Canada and Justice Thurlow's statements at para 15 that
his interpretation of the statute "may not differ much from what is
embraced by the exception referred to by the words "(at least
usually)" in the reasons of Pratte J. [Blaha v
Canada (MCI), [1971] FC 521, hereinafter "Blaha"] but in a close case it may be enough to make the difference
between success and failure for an applicant."
38 I
set out the entirety of paragraph 15 of Justice Thurlow's decision because of
the importance I attribute to it in ascribing meaning to his conclusions:
· 15 While the statute there under consideration was an income tax
law, this discussion appears to me to be general enough to be of some
assistance in interpreting the meaning of the words here in question. At the
same time, what Pratte J. refers to as the spirit of the citizenship
legislation must, I think, be borne in mind. It seems to me that the words
"residence" and "resident" in paragraph 5(1)(b) of the new
Citizenship Act are not as strictly limited to actual
presence in Canada throughout the period as they were
in the former statute but can include, as well, situations in which the person
concerned has a place in Canada which is used by him during the period as a
place of abode to a sufficient extent to demonstrate
the reality of his residing there during the material
period even though he is away from it part of the time. This may not differ much from what is
embraced by the exception referred to by the words "(at least
usually)" in the reasons of Pratte J. but in a close case it may be enough to make the difference between success and failure for an applicant
· [Emphasis added]
39 I
interpret Justice Thurlow's statement as establishing a precedent intended to
be little different from the interpretation of residency as pronounced in Blaha except in a "close case".
This interpretation is supported by the fact he refers to similar circumstances
before the amendment "where it would make a difference".
40 Thirdly,
in the same paragraph Justice Thurlow also made reference to the fact that
residence and resident were "not as strictly limited to actual presence in
Canada throughout the period as they were in the former statute". Reading
this in context, I interpret to mean Justice Thurlow was indicating that
residency was to be strictly construed, but not to the same degree.
41 Fourthly,
I also attach much significance to Justice Thurlow's statement that imputed
residency reflects the "reality" of residing in Canada. In describing
the need to demonstrate the"reality" of residence, Justice Thurlow has
in fact set a very high standard, which is tantamount to conclusive or very
persuasive proof, such as was before him that Mr. Papadogiorgakis had
conclusively demonstrated the reality of his residence in Canada during his
absence. I therefore interpret Justice Thurlow's reference to the reality of
residency, in the context of his other statements, as placing strict limits on
the capacity of the court to impute the equivalence of physical presence: the
Court must be satisfied that the applicant's conduct demonstrates
conclusively the reality of the person's equivalence of being resident in Canada for
three years, despite his or her absences.
42 Fifthly,
and a point which is highly relevant to the Court's debate whether the
residency test should be based on "Canadianization",I point out that
Mr. Papadogiorgakis was, by any measure required by the Act, thoroughly Canadianized prior to embarking on his studies abroad.
43 This
is clearly established by the facts of Papadogiorgakis as found at paragraph 3 of Justice Thurlow's reasons, which I fully
cite below:
· [3] The appellant was born in Crete and is now 25 years of age. He
is not married and has no family or kin living in Canada. He entered Canada on a student visa on September 5, 1970, and was
admitted for permanent residence on May 13, 1974.
During that period he attended Acadia University at Wolfville, Nova Scotia. In the first year and a half, he lived in residence at the university,
later ina rooming house in Wolfville, and in his third year he shared an
apartment at Wolfville along with three other persons.
In his fourth year, he lived at Grand Pré, Nova Scotia. During the summer recesses, he worked on a ferry running from Yarmouth, Nova
Scotia, to Portland, Maine. In the same period, he established a relationship with a friend and the friend's parent s, and in May 1974 moved to their home at Tusket, Nova Scotia. From that time until January of 1978, he
had a room in their home. He lived there whenin Canada
and he returned there whenever he had been out of Canada. He paid no rent for the room but contributed to the expenses of the
household. He was regarded as one of the family and considered the home to be his Canadian home. Most of his
personal property remained there when he was away but at such times the family
also made use of the room. Since 1973, he has been a
co-owner of a parcel of land nearby.
· [Empasis added]
44 I
would submit on these facts that the applicant was considered to have already
undergone sufficient de facto Canadianization
to meet the objectives of the legislation, even if he failed to meet the de jure requirements during the relevant
application period. Attending and living at a Canadian university for four
years, working in Canada, establishing a close relationship and living with a
Canadian family, besides always returning to his only home set up in Canada in
the intervals between U.S. academic semesters, surely meets what any court
could prescribe of as a sufficiently Canadian experience to meet the objectives
of section 5(1)(c) of the Act.
45 In
addition, a young man of limited means investing his savings in property in
Canada is singularly different from, for instance, a well-off foreign national
buying up a stake in the country as one of several residencies. I submit that
this evidence is further indicative of a "real"intention to establish
a residence in Canada.
46 While
I recognize that no reference was made by the Court to these latter facts apart
from their initial description, I cannot imagine that they did not play a role
in Justice Thurlow's conclusion that Mr. Papadogiorgakis had demonstrated the
"reality" of establishing a central mode of residency in Canada. In
any event, they make up the underlying facts upon which the ratio decidendi of the case is based.
47 In
summary therefore, in Papadogiorgakis the Court stated that: (1) it was a modest change to the previous
strict interpretation of residency; (2) the applicant had physically resided in
Canada during five-sixths, or more than 80 percent, of the three year period
required; (3) the applicant had in "reality" resided in Canada for an
additional three years before the commencement of his citizenship determination
period and had already undergone extensive de facto Canadianization; and (4) as well, the applicant led other probative
evidence demonstrating what the Court meant by centralizing his ordinary mode
of living in Canada, including his total integration into our most Canadian of
institutions - those of family and education - before he left for university in
the United States.
48 In
determining the precedential value or ratio decidendi of a case, I would submit that its starting point is its factual
foundation. By that, I mean that if a court seeks to apply a principle from a case,
the extent to which new facts may be analogized to those in the precedent is a
primary consideration. The greater the distinction between the factual
situations, the more tenuous is the precedential value of the case being relied
on. This precept applies at every level of the courts, although obviously
statements of principle from higher courts provide more latitude for wider
application.
49 In
light of the precautionary and limiting statement of Justice Thurlow, it would
appear that past case law relying on Papadogiorgakis has, in many instances, greatly extended its application to factual
situations beyond its circumstances and its clearly conservative language to
cases that it could not even remotely be said to stand for.
50 Its
principles state an initial requirement of a physical presence in Canada of
five-sixths of the three-year period. The remaining time required to meet the
strictures of the Act may be
attributed to the applicant only if supported by probative evidence meeting the
rigorous standard of demonstratingthe reality of a centralized ordinary mode of
residency in Canada based on circumstances that are analogous in effect to
those in Papadogiorgakis.
51 It
is further my respectful view that Papadogiorgakis should be followed pursuant to the principles of comity unless a
judge is convinced that the prior decision is wrong and can advance cogent
reasons in support of this. In this respect, Justice Marc Noel of the Federal
Court of Appeal, in Allergan Inc v Canada (Minister of
Health), 2012 FCA 308, summarized the principles of
comity at paragraph 47 as follows:
· [47] In the Federal Court, the above passage has been referred to as
authority for the proposition that while the decisions rendered by colleagues
are persuasive and should be given considerable weight, a departure is
authorized where a judge is convinced that the prior decision is wrong and can
advance cogent reasons in support of this view (Dela
Fuente v. Canada (Minister of Citizenship and Immigration), 2005 FC 992 (CanLII), 2005 FC 992, para. 29; Stone v. Canada (Attorney General), 2012 FC
81 (CanLII), 2012 FC 81, para. 12).
· D. Extrinsic Evidence on the Purpose of Section 5(1)(c)
52 In
applying an interpretation of Papadogiorgakis which imposes a rigorous standard to partially replace the
necessity of physical presence to establish residency, it is also appropriate
to consider extrinsic evidence on the interpretation of section 5(1)(c).
53 When
first faced with the divergence in the lines of reasoning that had developed
since Papadogiorgakis, Justice
Reed in Koo examined the House
of Commons debate regarding the amendment to the legislation. She concluded
that there was little to support a watered-down interpretation of residency;
indeed the opposite reasoning was evident. She says at para 7:
· 7 In some decisions it has been suggested
that the changes in the Citizenship Act which were made in 1978 [S.C. 1976-77,
c. 52, s. 128] lead to the conclusion that Parliament intended that physical
presence for the whole three-year period was not required. This is said to be
related to the removal from the Act of qualifications based on domicile. I have read the Parliamentary debates and committee proceedings of
that period and can find nothing to substantiate that conclusion. Indeed, quite
the contrary seems to be the case. The requirement of three-year residence
within a four-year period seems to have been designed to allow for one year's
physical absence during the four-year period. Certainly, the debates of the
period suggest that physical presence in Canada for 1,095 days was contemplated
as a minimum. In any event, as has been noted above,
the jurisprudence which is now firmly entrenched does not require physical
presence for the whole 1,095 days.
· [Emphasis added]
54 I
believe it is useful to particularize Justice Reed's comment that the debate
suggested three years of physical presence was contemplated as a minimum. For
the most part, the comments are recorded in Committee. They indicate that the
concern was entirely about reducing the physical presence requirement from five to three years. The government
defended using three years on the basis that communications now made it easier
to learn the essentials of being a Canadian citizen. There were also statements
that bringing the residency requirement down to three years devalued the
meaning of being a Canadian citizen, which would not be appreciated unless
earned. Nothing in these debates either from the government side or other parties
was to the effect that, beyond lowering the time requirement from five to three
years, physical presence in Canada should be otherwise diminished as the test
for residency.
55 The
following (from House of Commons Debates, 30th Parl, 1st Sess, Nos VI, IX, and X (1975-1976)) is a short
description of the nature of the Committee discussions which, as indicated,
expressed concern with the reduction of the residency requirement from five to
three years.
· The 1977 Citizenship Act was introduced as Bill C-20 on October 10, 1974 (page 5983). The
Secretary of State, Mr. Faulkner, introduced the second reading on May 21, 1975
(page 5983). Mr. Faulkner commented that one of the changes "which make
Bill C-20 a more liberal piece of legislation than the current Citizenship
Act"(page 5985), was the reduction of the residence period from five years
to three. He explained that the development of highly sophisticated systems of
telecommunications linked potential citizens to events across the country and
beyond, permitting them to acquire a genuine
understanding of Canada faster (page 5985).
· Resuming discussion on December 8, 1975, Mr. Epp (Provencher) stated
that "All of us should ask ourselves whether we have given immigrants an adequate opportunity to adapt to the Canadian
way of life." (Page 9803). He sought a demonstration of the fact that three years was "the time that is necessary for immigrants
to adapt socially, economically and culturally."
(Page 9804).
· Mr. Brewin (Greenwood) stated that "In our view, three years residence in Canada is enough to determine if an applicant has adequate knowledge of Canada, of the responsibilities and privileges
of citizens, and of one of the official languages."
(Page 9805).
· Mr. Gilbert (Broadview) endorsed the reduction to three years
because "people who come to Canada have to pay taxes - income tax, sales
tax, municipal tax, and so on - so within a very short
time [i.e. three years] they should have the full
rights, obligations and privileges of a Canadian citizen." (Page
9816).
· Mr Friesen (Surrey-White Rock) suggested that "This seems to be
the day when everything is instant. [...] Now we have
moved to instant citizenship; citizenship made easy."
(Pages 9822-9823). He argued that if citizenship was a right, "it ought to
be a right as soon as they land here" (page 9823), but if it was a
privilege, "the host country has a responsibility for establishing
criteria for the welfare of both the immigrant, or the applicant, and the host
country itself." (Page 9823).
· Mr. Knowles (Norfolk-Haldimand) said that many immigrants came from
cultures not too dissimilar to that in Canada, referring "particularly to
Great Britain, France, or even Germany and other European countries" (page
9825). However, for "immigrants from the Far East" (page 9825),
"To expect these people in three years to
assimilate a culture which is so different from their own is asking too much."(Page 9825). As well, the people who had had to wait five
years for their citizenship would not look kindly on their compatriots who were
able to get it after only three years (page 9825). Shortening the wait would
depreciate the value of citizenship (page 9825).
· Mr. McCain (Carleton-Charlotte) stated that "The purpose of a
term of eligibility is obvious." (Page 9829) It was to give the country the time to appraise the individual and decide
whether this was "a builder who will add to our structure of Canada." (Page 9829). Five years was not too long to assess
this.
· When debate resumed on December 10, 1975, Mr. Andre (Calgary Centre)
argued that "The thesis the minister proposed is that we live in a modern
age with modern communications, and that therefore what
took people five years to learn five years ago they can now learn in three
years. I suggest that is a very questionable
thesis."(Page 9911).
· Mr. Scott (Victoria-Haliburton) agreed that five
years "is not too long a time for any person to be asked to live in our
society and to learn why we are the way we are, and why
we place such a high value on our citizenship status." (Page 9912).
· Mr. Ritchie (Dauphin) also opposed the reduction to three years,
considering that "If citizenship means anything, surely it has to be
earned." (Page 9914). Five years was not too long
a time in which to understand Canadian traditions.
Immigrants from third world countries, especially, often had no knowledge of
the democratic process and wanted to come here and promote Marxism and
Communism (page 9915). They were "entirely different from the traditional
immigrants of western Europe." (Page 9915). Besides, keeping the period at
five years ensured that they would see at least one election before voting
themselves (page 9915).
· In the final round of discussions, on January 27, 1976, Mr.
Prud'homme (Saint-Denis) endorsed the reduction to
three years, given that Canada is "a country where
communications are so fast, where it is easy for
everyone to have a full knowledge of our institutions"
(page 10366).
· [Emphasis added]
56 From
the foregoing, it is clear that the government never had any concept of a
possible residency requirement below three years and had it suggested
otherwise, it could not have offered any logical ground for a shorter residency
period. I conclude that the extrinsic evidence strongly supports an
interpretation of the Act, and
by that I include Justice Thurlow's reasoning in Papadogiorgakis, which holds that exceptional circumstances are required to
establish residency in the absence of physical presence less than three years.
· E. Recent Reconsideration by Parliament of the Court's Debate on
Residency
57 While
not extrinsic evidence of the same nature that can be used to interpret the
purpose and thereby the meaning to be given legislation, it is also noteworthy
that a 1994 report of the Standing Committee on Citizenship and Immigration
[the Committee] (House of Commons, Standing Committee on Citizenship and
Immigration, Canadian Citizenship; A Sense of Belonging (June 1994) (Chair: Judy Bethel) [Canadian
Citizenship; A Sense of Belonging ]) considered not
only section 5(1)(c), but the
appropriateness of the Federal Court's decisions truncating the requirements of
physical presence to establish residency.
58 The
Committee began by noting the divergence in decisions that had occurred in the
Federal Court. It thereafter considered the arguments of immigration lawyers
and consultants that international business imperatives of their permanent
resident clients could not be met if they were continually required to be
resident in Canada.
59 The
Committee, after having "considered these arguments carefully" (Canadian Citizenship; A Sense of Belonging,
at page 11), concluded that the definition of residency in the new Act should require "a significant degree
of physical presence preceding a citizenship application" (Canadian Citizenship; A Sense of Belonging,
at page 12). Thereafter, it specifically endorsed the decision in Re Pourghasemi, including the passage on
Canadianization, saying that this "is not something one can do while
abroad, for Canadian life and society exist only in
Canada and nowhere else." [Emphasis in the
original.] (Canadian Citizenship; A Sense of Belonging, at page 11).
60 While
its recommendations did not lead to legislation changing the residency test, in
favour of any test, the Committee did unanimously endorse a rigorous physical
presence test for the determination of citizenship residency requirements. The
inability of Parliament to resolve this issue may be seen by the fact that no
amendment was made to resolve what was clearly an unacceptable situation of
having three irreconcilable tests competing with each other and being used
regularly to determine residency.
61 I
would respectfully submit that the extrinsic evidence endorses a continuing
legislative purpose of section 5(1)(c) that would impose either a significant physical residency
requirement very nearly approaching three years, or, as the exception to the
rule, some other truly analogous circumstance that can stand in for
Canadianization, such as was seen in Papadogiorgakis, via de facto
Canadianization
F. Schooling Outside of Canada
62 Coming
back to the present case, the issue going forward is whether there should be an
exceptional residency rule for students in immigrant families who have set up
their apparent place of residence in Canada at their parent's residence and
then leave Canada for a significant amount of time.
63 If
one tries to make the case that the time spent by students who attend
universities around the world in those countries that share democratic
principles and political and cultural experiences with Canada constitutes
Canadianization, then this is to admit that Canada is no different from other
countries for the purposes of citizenship or for what it stands for.
64 I
am satisfied that our history and unique circumstances have created a Canadian
character and institutions that are significantly distinct and different from
those of other countries, including that of our neighbours to the south,
despite all that we share with them.
65 In
a comment that I admit may exceed the bounds of judicial notice, I am
particularly of the view that the intrinsic values of Canadians based upon
attitudes of respect for others and a willingness to accommodate cultural,
social and economic challenges to resolve our differences is an essential
characteristic of being a Canadian. I am in agreement with Justice Muldoon in Pourghasemi, at para 6 that being a Canadian
is something that cannot be readily learned, but only experienced by living
here because "Canadian life and society exist only in Canada and nowhere
else".
66 As
for adult students becoming Canadianized through some process of osmosis by the
Canadianization of their parents or family members, while the parents' efforts
to adopt Canada as their country is evidence of the determination and support
the children will receive to follow in their parents' footsteps, this cannot
replace the need for the adult sons and daughters themselves to come into
contact and participate with Canadians in their daily lives. Indeed, Papadogiorgakis would suggest that living
with an established Canadian family is an example of a criterion to demonstrate
the "reality" of a centralized mode of residency sufficient to
replace the physical absence of actually living here.
67 In
summary, the Judge in this matter did not misdirect itself in attempting to
base its decision on Justice Thurlow's analysis in Papadogiorgakis. The misapprehension, as I would respectfully describe it, has
occurred in many instances in other cases in failing to comprehend the essence
of the Court of Appeal Judge's decision. Accordingly, I am satisfied the
Respondent has not met the residency requirements of the Act, which generally should be in accordance
with the interpretation of Papadogiorgakis described in paragraph 49 above and other passages in these reasons
to the same effect.
6. Conclusion
68 The
decision of the Judge is set aside as requested by the applicant Minister, to
be disposed of by a different panel in accordance with my directions above
concluding that the Respondent has not met the residency requirements of the Citizenship Act.
JUDGMENT
THIS COURT'S JUDGMENT is that the application is granted.
ANNIS J.
