Canada (Minister of Citizenship and Immigration) v.
Ahmad
Between
The Minister of Citizenship and Immigration, Applicant, and
Yousef Mustafa Bani Ahmad, Respondent
The Minister of Citizenship and Immigration, Applicant, and
Yousef Mustafa Bani Ahmad, Respondent
[2014] F.C.J. No. 1095
2014 FC 898
Docket: T-2019-13
Federal Court
Toronto, Ontario
LeBlanc J.
Heard: August 25, 2014.
Judgment: September 18, 2014.
Docket: T-2019-13
Federal Court
Toronto, Ontario
LeBlanc J.
Heard: August 25, 2014.
Judgment: September 18, 2014.
(36 paras.)
JUDGMENT AND REASONS
1 LeBLANC
J.:-- This case is an appeal by the Minister of Citizenship and Immigration
(the Minister) under subsection 14(5) of the Citizenship Act, RSC, 1985, c C-29 (the Act) and section 21 of the Federal Courts Act, RSC 1985, c C-7, of a
decision of a Citizenship judge approving the respondent's application for
Canadian citizenship.
I. Background
2 Mr.
Bani-Ahmad is a national of Jordan. He arrived in Canada in 1999 and became a
permanent resident in October, 2006, following a positive inland application
for Humanitarian and Compassionate grounds under the Immigration
and Refugee Protection Act (SC 2001, c 27).
3 On
July 11, 2009, he submitted an application for Canadian citizenship. Therefore, the relevant four year period for the
purposes of the residency requirement Mr. Bani-Ahmad had to meet as a condition
for being granted Canadian citizenship was July 11, 2005 to July 11, 2009.
4 In
the citizenship application and subsequent Citizenship Questionnaire he was
asked to complete, Mr. Bani-Ahmad declared three absences from Canada during
that four year period. In the course of processing of his citizenship
application, Mr. Bani-Ahmad was asked to provide documents to demonstrate that
he met the residency requirement but he failed to do so.
5 His
citizenship application was eventually referred to a Citizenship judge for a
hearing that was held on September 30, 2013. After reviewing the record before
him, the Citizenship judge requested translation of a foreign language stamp in
Mr. Bani-Ahmad's passport and reserved his final decision for the outcome of
the translation.
6 On
October 15, 2013, the Citizenship judge approved Mr. Bani-Ahmad's application.
In a rather short decision, the Citizenship judge listed factors which appear
to have been considered in reaching his decision. The Citizenship judge first
stated that Mr. Bani-Ahmad had less than 1095 days of physical presence in
Canada as required by paragraph 5(1)(c) of the Act "because he applied too soon for Citizenship".
He then indicated that Mr. Bani-Ahmad was in Canada since 1999, that his
passport corroborated his testimony, that three of his children were born in
Canada, that he owned a restaurant and a house in Toronto, that the restaurant
was the only source of income for he and his family and that some members of
his family (brothers, sister and mother) were in Canada.
7 Under
the heading "Decision", the Citizenship judge wrote the following:
·
Considering all of the above,
and based on my careful assessment of the applicant's testimony, as well as my
consideration of the information and evidence before me, I am satisfied that
the applicant was actually living and was physically present in Canada on the
number of days sufficient to comply with the Citizenship Act.
8 The
Minister claims that this decision must be quashed for two reasons. First, the
Minister contends that the Citizenship judge failed to identify which of the
three residency tests was used, resulting in his decision not meeting the test
of clarity, precision and intelligibility established in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190. Second, the Minister submits, in the alternative, that the impugned
decision is unreasonable as the Citizenship judge reached conclusions about Mr.
Bani-Ahmad's ties to Canada that are not supported by the evidence.
II. Issue and Standard of Review
9 The
sole issue to be resolved in this case is whether the impugned decision
warrants intervention by this Court. In order to answer that question I have
applied the standard of reasonableness which is the standard of review
applicable in citizenship appeals dealing with the residency requirement.
10 It
is indeed generally accepted in this Court's jurisprudence "that a
citizenship judge's application of evidence to a specific test for residency
under paragraph 5(1)(c) of the
Act raises questions of mixed fact and law and is thus reviewable on a standard
of reasonableness": Saad v Canada (Minister of
Citizenship and Immigration), 2013 FC 570, 433 FTR 174,
at para 18, and see also Canada (Minister of Citizenship
and Immigration) v Rahman, 2013 FC 1274 at para 13; Balta v Canada (Minister of Citizenship and Immigration), 2011 FC 1509, 403 FTR 134 at para 5; Canada
(Minister of Citizenship and Immigration) v Baron, 2011
FC 480, 388 FTR 261 at para 9; Canada (Minister of
Citizenship and Immigration) v Diallo, 2012 FC 1537, 424
FTR 156 at para 13; Huang v Canada (Minister of
Citizenship and Immigration) 2013 FC 576 at paras 24 to
26).
11 There
is no dispute between the parties that the standard of review applicable to the
present appeal is the standard of reasonableness.
III. Analysis
The Legal Principles
Applicable to the Citizenship Residency Requirement
12 Paragraph
5(1)(c) of the Act provides for
the residency requirements citizenship applicants need to meet in order to be
successful with their application. It reads as follows:
·
Citizenship Act, RSC 1985,
c C-29
·
Grant of citizenship
(1) The Minister shall
grant citizenship to any person who
·
[...]
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;
* * *
·
Loi sur la citoyenneté (LRC
(1985), ch C-29)
·
Attribution de la citoyenneté
(1) Le ministre attribue
la citoyenneté à toute personne qui, à la fois:
·
[...]
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;
13 There
is an ongoing debate within this Court as to what paragraph 5(1)(c) of the Act means exactly. Competing views
have emerged from that debate with the result that three different tests are
available to Citizenship judges in assessing the residency requirement in any
given case (Sinanan v Canada (Minister of Citizenship
and Immigration) 2011 FC 1347 at paras 6 to 8; Huang v Canada (Minister of Citizenship and Immigration), 2013 FC 576, [2013] F.C.J. No. 629 (QL), at paras 17 and 18).
14 The
first test involves the strict counting of days of physical presence in Canada
which must total 1095 days in the four years preceding the application. It is
often referred to as the quantitative test or the Pourghasemi test (Pourghasemi (Re) (FCTD) [1993] 62 FTR 122, [1993] F.C.J. No. 232 (QL)).
15 The
second test is less stringent. It recognizes that a person can be resident in
Canada, even while temporarily absent, if there remains a strong attachment to
Canada. This test is generally known as the Re
Papadogiorgakis test (Re
Papadogiorgakis, [1978] 2 FC 208, [1978] F.C.J. No. 31
(QL)).
16 The
third test builds on the second one by defining residence as the place where
one has centralized his or her mode of living. It is described in the jurisprudence
as the Koo test (Re Koo, 59 FTR 27, [1992] F.C.J. No. 1107
(QL); see also Paez v Canada (Minister of Citizenship
and Immigration) 2008 FC 204 at para 13, Sinanan, above at paras 6 to 8; Huang, above at paras 37 to 40).
17 The
last two tests are often referred to as qualitative tests (Huang, above at para 17).
18 The
dominant view in the case law is that Citizenship judges are entitled to choose
which test they desire to use among these three tests and that they cannot be
faulted for choosing one over the other (Pourzand v
Canada (Minister of Citizenship and Immigration) 2008 FC
395 at para 16; Xu v Canada (Minister of Citizenship and
Immigration) 2005 FC 700 at paras 15 and 16; Rizvi v Canada (Minister of Citizenship and Immigration) 2005 FC 1641 at para 12).
19 However,
they can be faulted if they fail to articulate which residency test was applied
in a given case (Dina v Canada (Minister of Citizenship
and Immigration) 2013 FC 712, 435 FTR 184, at para 8).
20 This
is, in my view, what happened in this case. For the reasons that follow, this
is fatal to the Citizenship judge's decision.
The Citizenship Judge's
Failure to Articulate Expressly or Impliedly the Residency Test
21 It
is undisputed that the Citizenship judge did not expressly state or articulate
which of the three residency tests was used in his assessment of Mr.
Bani-Ahmad's citizenship application.
22 Mr.
Bani-Ahmad asserts that since the Supreme Court of Canada's judgment in Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62, [2011] 3 SCR 708,
deference is owed to administrative decision makers, even if the reasons given
in support of findings are not entirely adequate. As a result, he says the
Citizenship judge was under no obligation to expressly identify the test
applied.
23 Mr.
Bani-Ahmad further submits that it appears clear from the impugned decision,
when read as a whole, that the test applied was the one set out in Koo, above, and that, as a result, the decision
possesses the qualities of clarity, transparency and intelligibility required
by the case law.
24 It
is true that administrative decision makers are owed deference even where the
reasons supporting a finding are not entirely adequate. However, Newfoundland Nurses, above, still requires
reasons for decisions to be intelligible enough to allow the reviewing court to
understand why and how the decision maker reached his or her conclusion and to
permit it to determine whether the conclusion reached by the decision-maker
falls within the range of possible outcomes (Newfoundland
Nurses, at para 16).
25 As
I have indicated previously, the case law, as it stands now, allows Citizenship
judges to choose which of the three residency tests they will apply in any
given case. In such singular circumstances, which are less than optimal from
the standpoint of ensuring consistency and certainty of the law, the least that
can be expected from Citizenship judges is that they articulate as clearly as
possible, in each and every case, which test was chosen to assess the Act's
residency requirement. In this context, this requirement, in my view, is vital
in order to allow this Court to understand why a Citizenship judge made his or
her finding on the residency requirement.
26 As
the Minister points out in his written submissions, the dominant view within
this Court is that in order to be clear, precise and intelligible, reasons for
decisions in the citizenship context must, at the very least, indicate which
residency test was used and why that test was met or not (Canada v Jeizan 2010 FC 323, 386 FTR 1, at
para 17-18; Dina v Canada (Minister of Citizenship and
Immigration) 2013 FC 712, 435 FTR 184 at para 8; Canada (Minister of Citizenship and Immigration) v Al-Showaiter, 2012 FC 12, at para 21, Canada (Minister of
Citizenship and Immigration) v Baron, 2011 FC 480, 388
FTR 261, at para 13-18, Canada (Minister of Citizenship
and Immigration) v Saad, 2011 FC 1508, 404 FTR 9, at
paras 18-24).
27 This
view has prevailed in the post-Newfoundland Nurses jurisprudence of this Court
(Canada (Minister of Citizenship and Immigration) v Abdallah, 2012 FC 985, 417
FTR 13 and Canada (Minister of Citizenship and Immigration) v Raphaël, 2012 FC
1039, 417 FTR 177).
28 Here,
the Citizenship judge did not refer to any of the three tests in his reasons
for decision. It is not possible either to infer from his reasons which test he
may have applied. In fact, the Citizenship judge made a number of findings that
are impossible to comprehensively and reasonably associate with one of the
three tests. These findings read
as it follows:
The applicant as less
day of physical presence in Canada (1088) only because he applied too soon for
Citizenship after being landed. However, he is in Canada since 1999.
A throughout examination
of the relevant passport confirms what stated by the applicant about his
physical presence but I asked for a professional translation because there is
one foreign language stamp. (I personally photocopied all and only the stamped
pages of the relevant passport -- see attached)
The applicant is married
with four children (three of them born in Canada).
The applicant is the
owner of a restaurant in downtown Toronto.
He is married and they
own the house where they live.
He has the profit from
the restaurant as the only source of income for the family.
His five brothers, the
sister and his mother are all established in Canada.
29 It
follows that it is not possible to determine with any degree of precision the
residency test in relation to which these findings were applied. In particular,
when it comes to the findings related to Mr. Bani-Ahmad's ties to Canada, it is
not possible to discern in relation to which of the two qualitative tests, that
is the Papadogiorgakis test or
the Koo test, these findings
would have been made.
30 Furthermore,
the reasons for decision are irreconcilable with each other. On the one hand,
the Citizenship judge noted that Mr. Bani-Ahmad was short of the 1095 days of
physical presence required by paragraph 5(1)(c) of the Act. On the other hand, he approved Mr. Bani-Ahmad's
citizenship application on the basis that he was satisfied that Mr. Bani-Ahmad
"was actually living and was physically present in Canada on the number of
days sufficient to comply with the Citizenship Act".
31 As
the Minister points out, these statements, when read in isolation, might
indicate that the Citizenship judge applied the physical presence test.
However, the Citizenship judge could not possibly have applied that test given
that Mr. Bani-Ahmad had not accumulated the threshold number of days of
physical presence in Canada. If he did, then his decision falls squarely
outside the range of possible outcomes, as required by Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190.
32 In
sum, since it is impossible to identify which test was used, it is impossible
for this Court to understand why and how the Citizenship judge reached his
conclusion and to determine whether that conclusion falls within the range of
possible outcomes.
33 This
is a clear case of a decision lacking in clarity, transparency and
intelligibility. For that reason alone, the impugned decision is unreasonable
and must be set aside. It is therefore not necessary to examine the other
ground of appeal raised by the Minister.
34 The
Minister is seeking that the appeal be granted and that Mr. Bani-Ahmad's
citizenship application be re-determined by a different Citizenship judge. This
would presumably avoid Mr. Bani Ahmad to have to re-apply for Canadian
citizenship, at least for the time being.
35 The
appeal will be granted accordingly.
36 The
Minister is not claiming his costs.
JUDGMENT
·
THIS COURT'S JUDGMENT is that:
The appeal is
granted;
The Respondent'
citizenship application is remitted for re-determination by a different
Citizenship judge; and
The whole without
costs.
LeBLANC J.
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