Donohue v. Canada (Minister of Citizenship and
Immigration)
Between
Erin Christine Donohue, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Erin Christine Donohue, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 443
2014 FC 394
Docket: T-1824-13
Federal Court
Toronto, Ontario
Manson J.
Heard: April 14, 2014.
Judgment: April 28, 2014.
Docket: T-1824-13
Federal Court
Toronto, Ontario
Manson J.
Heard: April 14, 2014.
Judgment: April 28, 2014.
(34 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 MANSON J.:-- This is an appeal of the decision
of Floyd C. Babcock, a Citizenship Judge with the Citizenship Commission,
Immigration Canada [the Judge]. The Judge denied the Applicant's application
for Canadian citizenship by concluding that she did not meet the residency
requirement as defined in 5(1)(c) of the Citizenship Act, RSC, 1985, c. C-29 [the Act]. As a preliminary issue, this matter
should have proceeded as an appeal pursuant to subsection 14(5) of the Act. I
hereby convert the proceeding into an appeal.
Issues
2 The
issues in the present application are as follows:
Did the Judge err by
applying the physical presence test?
Was the Judge's
application of the facts to the physical presence test reasonable?
Did the Judge breach the
duty of procedural fairness?
Background
3 The
Applicant is a citizen of the United States. In 2001, she entered Canada, and
became a permanent resident on January 22, 2008. On February 28, 2010, the
Applicant applied for Canadian citizenship. She submitted a Residence
Questionnaire on April 14, 2011.
4 On
October 7, 2013, the Applicant appeared with counsel for a one-hour hearing before
the Judge.
5 The
Judge evaluated whether the Applicant met the residency requirement in 5(1)(c)
of the Act in accordance with the test from (Re)
Pourghasemi, [1993] F.C.J. No. 232 (TD) [Pourghasemi], which relies in a strict count
of days. He determined that the Applicant failed to meet the requirement from Pourghasemi that she be physically present in
Canada for at least 1095 days out of the four years immediately preceding her
application for citizenship.
6 In
coming to this conclusion, the Judge noted that the Applicant declared 156
worth days of absences from Canada in her citizenship application, but 205 on
her Residence Questionnaire. Likewise, he found that the Applicant was
physically present in Canada for 958 days according to her citizenship
application, but 909 days according to her Residence Questionnaire.
7 The
Judge also concluded that he was unable to calculate the number of days of the
Applicant's presence in Canada because her History of Entries to Canada [ICES
Report] conflicts with information provided by the Applicant. In particular, he
noted that the Applicant's ICES Report lists 49 exits from and entries into
Canada, while her Residence Questionnaire lists 44. Further, only 19 of those
listed on the ICES Report were verified against the Applicant's Residence
Questionnaire.
8 The
Judge noted that the Applicant's history with the Ontario Ministry of Health
and other documents submitted are passive indicators of residence in Canada.
9 The
Judge found that the Applicant had the burden to prove her physical presence in
Canada via consistent and reliable evidence, but did not do so (Atwani v. Canada (Minister of Citizenship and Immigration), 2011 FC 1353 at paras 12, 18).
10 The
relevant statutory provisions under consideration are attached as Annex A.
Standard of Review
11 The
first issue involves a question that has been the subject of much debate and
uncertainty in the jurisprudence.
12 In
Gavriluta v. Canada (Minister of Citizenship and
Immigration), 2013 FC 705 at para 27, Justice Elizabeth
Heneghan stated that the appropriate standard of review is reasonableness. Her
rationale was based on Lam v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 410 at
para 14 [Lam], where Chief
Justice Lutfy, as he then was, stated that a citizenship judge has discretion
to choose one of three legal tests to assess the residency requirement. Given
this discretion, a citizenship judge's decision to select one of these tests
should be reviewed on the standard of reasonableness (Dunsmuir
v. New Brunswick, 2008 SCC 9, at para 53 [Dunsmuir]).
13 However,
this issue involves the selection of an appropriate legal test to determine
whether the requirements of 5(1)(c) of the Act are met. As this is a question
of law of central importance to the legal system, I believe that the
appropriate standard of review is correctness (Dunsmuir, above, at para 60), as been held in several cases (Ghosh v. Canada (Minister of Citizenship and Immigration), 2013 FC 282 at para 18; Martinez-Caro v.
Canada (Minister of Citizenship and Immigration), 2011
FC 460 at para 52 [Martinez-Caro];
El Ocla v. Canada (Minister of Citizenship and
Immigration), 2011 FC 533 at paras 17-18).
14 The
second issue, as a question of mixed fact and law, is reviewable on the
standard of reasonableness. The third question is one of procedural fairness
and is reviewable on the standard of correctness (Canada
(Minister of Citizenship and Immigration) v. Takla, 2009
FC 1120).
Analysis
Did the Judge err by
Applying the Physical Presence test?
15 The
Applicant argues that the Judge ought to have conducted a qualitative
assessment of the evidence submitted which showed the quality of her ties to
Canada. The Applicant suggests that such an assessment would allow her to meet
the residency requirement, despite not satisfying the physical presence test.
16 The
Applicant submitted over 300 pages of documents with her Residence
Questionnaire to demonstrate her attachment to Canada. Other than a blanket
statement that he considered the evidence, there is no indication that the
Judge undertook a qualitative assessment.
17 The
Applicant notes that the documents submitted show a detailed and continuous
history of employment, residence, taxes, and auto and health insurance in
Canada. Furthermore, they show evidence of her establishment via documentation
relating to her husband, child and various community initiatives with which she
is involved. The Respondent notes that this constitutes overwhelming evidence
that she would meet the residency requirement if a qualitative assessment were
conducted.
18 The
selection of the appropriate test to establish the residency requirement in
5(1)(c) of the Act is the subject of much debate, as three distinct tests have
emerged from the jurisprudence of the Federal Court.
19 The
tests originate from Pourghasemi,
Re Papadogiorgakis [1978] 2 F.C.
208 [Papadogiorgakis], and Koo (Re), [1993] 1 F.C. 286 [Koo]. The Pourghasemi test is the most restrictive: it requires a quantitative assessment
of the number of days the applicant has physically spent in Canada in order to
determine whether they have met the residency requirement in 5(1)(c) of the
Act. In contrast, the tests from Papadogiorgakis and Koo make an
additional qualitative assessment. They ask whether the applicant, while not
meeting the physical presence requirement as articulated in Pourghasemi, can nonetheless meet the
residency requirement based on the quality of their attachment to Canada. The
tests from Papadogiorgakis
("centralized mode of living") and Koo ("substantial connection") both take different approaches
to undertaking this qualitative assessment, but fundamentally ask the same
question.
20 The
availability of the differing tests has endured because section 16 of the Act
limits citizenship appeals to the Federal Court. As no appeal lies with the
Federal Court of Appeal, there has been no unifying authority to guide trial
decisions on this issue. Owing to this and the absence of legislated guidance
by Parliament, various decisions by the Federal Court have taken different
roads in determining which test or tests should be used by a citizenship judge
in assessing the residency requirement in 5(1)(c) of the Act.
21 The
first approach is the one advanced by the Applicant on the basis of the precedent
in Lam, above: a citizenship
judge may apply any of the three tests described above.
22 A
second approach was first articulated in Chen v. Canada
(Minister of Citizenship and Immigration), 2001 FCT
1229, and adopted in the Martinez-Caro decision. In Martinez-Caro, Justice Rennie concluded that principles of statutory
interpretation dictate that the residency requirement in 5(1)(c) of the Act
must be assessed using the strict physical presence test from Pourghasemi.
23 The
third is a hybrid approach. Justice James O'Reilly in Canada
(Minister of Citizenship and Immigration) v. Nandre,
2003 FCT 650 at para 12, held that if the physical presence test from Pourghasemi is not met, one of the qualitative
tests should be considered if an applicant has submitted evidence that would
allow such an assessment. Justice O'Reilly later clarified that the Koo test should be the qualitative test used
in this hybrid approach (Dedaj v. Canada (Minister of
Citizenship and Immigration), 2010 FC 777 at para 7).
24 I
find the reasoning by Justice Rennie, at paras 29-34 of Martinez-Caro, compelling:
· 29 On a plain and ordinary reading of the statute, as a whole,
Parliament has expressly defined the degree or extent of latitude or
flexibility to be granted to putative citizens. Residence speaks of presence,
not absence. In my view, the qualitative tests do not adequately take into
account either the literal meaning of the section nor the requirement that the
statute be read as a whole. The qualitative approach also leaves unanswered how
or under what principle of statutory interpretation the Court imports into
otherwise precise language greater absences or periods of non-residency greater
than those already expressly defined by Parliament. There is, in sum, no principle
of interpretation that would support the extension of periods of absences
beyond the one year expressly provided by Parliament. Absent an issue of
constitutionality the language of Parliament prevails and which a court, having
reached a conclusion as to its interpretation, must apply.
· 30 In construing the statute, the fundamental question, therefore,
is, why did Parliament prescribe at least three years of residency in the four
years preceding the application? The use of the words at least, in the Act
indicates that 1,095 days is the minimum number of days a given citizenship
applicant must accumulate. Parliament provided to would-be citizens the
flexibility to accumulate 1,095 days over the course of four years, or 1,460
days. Accumulation by its ordinary meaning, imports a quantitative analysis. A
test of accumulation is, quite separate and distinct from tests of citizenship
based on intention or where one centers ones life. Intention cannot be
accumulated as the statute dictates nor does the concept of "centralizing
ones mode of life" fit well with the quantitative elements of the words at
least.
· 31 Subsection 5 (1.1) has seldom been addressed in considering the
definition of residency. It provides:
· 5 (1.1) Any day during which an applicant for citizenship resided
with the applicant's spouse who at the time was a Canadian citizen and was
employed outside of Canada in or with the Canadian armed forces or the federal
public administration or the public service of a province, otherwise than as a
locally engaged person, shall be treated as equivalent to one day of residence
in Canada for the purposes of paragraph (1)(c) and subsection 11(1).
* * *
· 5 (1.1) Est assimilé à un jour de résidence au Canada pour
l'application de l'alinéa (1)c) et du paragraphe 11(1) tout jour pendant lequel
l'auteur d'une demande de citoyenneté a résidé avec son époux ou conjoint de
fait alors que celui-ci était citoyen et était, sans avoir été engagé sur
place, au service, à l'étranger, des forces armées canadiennes ou de
l'administration publique fédérale ou de celle d'une province.
· The plain reading of subsection 5 (1.1) reinforces the conclusion
arising from a reading of the statute as a whole, namely that periods spent
outside of Canada, by non-citizens, would not, save in the limited
circumstances described, count. Parliament thus expressly contemplated the
period of time during which putative citizens could be out of the country and
in what circumstances. In my opinion, based on the plain reading of the text
the requirement of three-year residence within a four-year period has been
expressly designed to allow for one year's physical absence during the
four-year period.
· 32 Again, returning to the first principle of interpretation,
residency signifies presence, not absence, in both official languages. The
French version is equally authoritative as the English, and points to the same
conclusion as to Parliament's intent.
· 33 This interpretation is not new. It has a long antecedence which
can be traced back to the decision of Pratte J. in Blaha, Nadon J. in Chen, and
Muldoon J. in Re Pourghasemi. It finds its most recent expression in the
decision of this Court in Sarvarian v. Canada (Minister of Citizenship and
Immigration), 2010 FC 1117, of Justice Mosley in Hao and Justice Gauthier in
Alinaghizadeh.
· 34 To conclude on the question of statutory interpretation, I note
that Parliament conferred on the Citizenship Court judge the discretion to make
recommendations to the Minister of Citizenship that citizenship be granted in
cases of exceptional circumstances. The discretion to relieve from any undue
hardship or unfairness, such as when an individual was kept out of Canada for
reasons beyond their control were thus contemplated and addressed in subsection
5(4), and to read the same discretion into the very definition of residency, is
to import, indirectly, that which Parliament has already addressed directly in
subsection 5(4). It also, in effect, renders that discretionary power nugatory.
Why else would it be necessary to make a recommendation to the Minister if, by
the selection of a more lenient standard, citizenship can be conferred?
25 While
I have sympathy for the frustration of the Applicant in the inconsistent
approaches taken both at the Citizenship Commission level and in this Court, I
find that based on the plain and ordinary reading of the statute, the strict
physical presence test is the principled approach to take.
Was the Judge's
Application of the facts to the Physical Presence test Reasonable?
26 The
Applicant argues that the Judge erred in finding that there was an
inconsistency between the number of days that the Applicant stated that she was
absent from Canada in her citizenship application (156) versus her Residence
Questionnaire (205). Likewise, the Applicant takes issue with the Judge's
finding that the number of days she was physically present in Canada was
inconsistent between these two sources.
27 The
Applicant argues that this distinction is explainable, because the method of
calculating days for purposes of 5(1)(c) of the Act differs depending on
whether the days accumulated before or after the Applicant became a permanent
resident while residing in Canada, as per 5(1)(i) and 5(1)(ii) of the Act. The
Applicant notes that she listed 205 absences in total on her citizenship
application, but 98 were in the period before she became a permanent resident.
As per 5(1)(i), each day absent from Canada which occurred prior to her
becoming a permanent residence is equal to one half-day for the purposes of
fulfilling the residency requirement in 5(1)(c). Accordingly, these 98 days
become 49 days for the purpose of the Act. Adding these to the remaining 107
days of absence, which occurred after she received permanent residency, the
total is 156 days. This is consistent with the absences stated on her Residence
Questionnaire.
28 The
Applicant also states that she noted 207 absences on her questionnaire, not 205
as the Judge suggests, as she remembered subsequent to filing her application
that she was absent from Canada for an additional two days before she became a
permanent resident. She acknowledges that, for the purposes of the Act, there
is a discrepancy of one day between her citizenship application and her
Residence Questionnaire.
29 I
agree with the Applicant that the discrepancy between the dates cited by the
Judge is explainable. However, in light of the fact that neither the absences
cited on the Applicant's citizenship application or her Residence Questionnaire
add up to 1095 days of physical presence in Canada, this explanation is
irrelevant to the Citizenship Judge's conclusion. As such, I do not find the
Judge's decision to be unreasonable.
Did the Judge Breach the
Duty of Procedural Fairness?
30 The
Applicant argues two aspects of procedural fairness. First, she argues she had
legitimate expectations as to which residency test would be used. Second, she
claims that she was not given an opportunity to respond to a negative
credibility finding made against her. The procedural fairness grounds are
determined without a reference to the source of the complaints (IE the
residence questionnaire and the line in the judge's decision regarding
credibility).
31 With
regard to legitimate expectations, it is understandable that, when given a
hearing despite not meeting the physical presence requirement, the Applicant
might presume that a qualitative analysis would be undertaken by the Judge.
32 However,
I do not feel that any conduct or the representations made in the Residence
Questionnaire could reasonably be described as "...clear, unambiguous and
unqualified" as per CUPE at
para 131. At best, it could be said that a reasonable inference might be made
that a qualitative assessment would be undertaken. This is not sufficient to
establish a breach of procedural fairness.
33 Likewise,
I do not believe that the Applicant's argument regarding the Judge's alleged
credibility findings has merit. While it is not clear whether the Judge is
referring to sufficiency of evidence or credibility in the statement brought
into issue by the Applicant, on balance I believe his statement effectively
indicates his finding that the Applicant has not met the physical presence
requirement. It is not an indictment of her credibility which requires a
response. In any event, given that she acknowledges she has not satisfied the
physical presence test, ambiguity around the credibility of her evidence is
immaterial.
34 I
find that there was no breach of procedural fairness.
JUDGMENT
THIS COURT'S JUDGMENT is that:
This appeal is
dismissed.
MANSON J.
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