OTTAWA, Ontario, the 24th day of November 2005
PRESENT: THE HONOURABLE MR. JUSTICE PAUL U.C. ROULEAU
BETWEEN:
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
ROULEAU J.
[1] The applicant, Ahmed Tagnaouti Moumnani, is appealing from the decision delivered on March 10, 2005 by the Citizenship Judge dismissing his citizenship application on the ground that he did not meet the residence requirements set out in paragraph 5(1)(c).
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5. (1) The Minister shall grant citizenship to any person who (a) makes application for citizenship; (b) is eighteen years of age or over; (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner: (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;
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5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois : a) en fait la demande; b) est âgée d'au moins dix-huit ans; c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante : (i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent;
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[2] The applicant obtained permanent residence on June 23, 1999 and submitted his citizenship application on January 31, 2003. Before the Citizenship Judge, the applicant indicated that, during the period between the two dates, he had been present in Canada for a total of 1,110 of the 1,317 days in that period. He had been outside of Canada for a period of 207 days.
[3] The Citizenship Judge stated that he was not satisfied with the documents submitted by the applicant in support of his residence in Canada and indicated that he doubted the veracity of the absence dates indicated by the applicant. At the hearing, the Citizenship Judge asked the applicant to provide additional evidence. Three days later, he reviewed that evidence and concluded that the applicant could not, on a balance of probabilities, show that he had resided in Canada for three of the four years claimed.
[4] In arriving at this conclusion, the Citizenship Judge noted a number of contradictions concerning the applicant’s business. The applicant asserted that he was an optician and had opened an eyeglass supply company in Canada and the United States. In order to summarize the array of evidence introduced in this regard, the Citizenship Judge focused primarily on the company’s annual reports and income tax returns. In short, the Citizenship Judge identified a number of contradictions between the applicant’s statements and the documents submitted as evidence.
[5] The applicant alleges that the Citizenship Judge had no cause to doubt his statements and that his decision cannot be based on an unfounded claim, as described in Villarroel v. M.E.I. (1980), 31 N.R. 50.
[6] The applicant also points out that the documentary evidence supports his statements and that, since his family resides in Canada and his children are quite young, it is only natural that he would have resided in Canada during that period.
[7] Since he was present during the relevant period longer than the minimum necessary to meet the residence requirements, the applicant maintains that the Citizenship Judge erred in rejecting his application.
[8] Alternatively, despite a determination that the applicant was not in Canada, the Citizenship Judge should then have assessed the application on the basis of the criteria from Re Koo [1993] 1 F.C. 286 in order to establish whether his connection with Canada was sufficient. The applicant argues that, by failing to apply the residence test set out in Re Antonios E. Papadogiorgakis, [1978] 2 F.C. 208, which would have confirmed the nature of his connection to Canada, the Citizenship Judge rendered a patently unreasonable decision.
[9] The respondent asserts that, since the applicable standard of review is reasonableness simpliciter and since the Citizenship Judge’s assessment is in fact based on contradictions in the evidence provided by the applicant, the application should be dismissed.
[10] According to the respondent, the fact that the applicant could not show the Citizenship Judge when he was or was not in Canada justified the decision to dismiss his citizenship application. As for the passport and the dates recorded therein, the Citizenship Judge was unable to establish the exact number of days spent in Canada.
[11] The respondent asserts that, since the applicant was unable to establish that he had resided in Canada for 1,110 days, his argument concerning the relevant period has no basis. Despite the more liberal approach advised in the case law submitted by the applicant, the applicant’s credibility was at issue, and that was the most important consideration.
[12] The arguments of both parties are such that the only issue for the Court to resolve in this case is whether the Citizenship Judge’s decision concerning the applicant’s residence and his interpretation of the evidence were unreasonable.
ANALYSIS
The Standard of Review
[13] In order to answer the preceding question, we must begin by determining the applicable standard of review. In the past, the applicable standard of review for an appeal from the decision of a Citizenship Judge was correctness: see Lam v. Canada (M.C.I.) (1999), 164 F.T.R. 177; F.C.J. No. 410 (QL). However, at paragraphs 14 to 18 of Lama v. Canada (M.C.I.), [2005] F.C.J. No. 578 (QL), de Montigny J. describes developments in the case law concerning the standard of review for a citizenship judge’s decision:
¶ 14 To answer that question, the applicable standard of review must first be determined. In the past, certain judges relied on the decision by Lutfy J. (as he then was) in Lam v. Canada (M.C.I.), ([1999] F.C.J. No. 410) to determine that the appropriate standard of review for an appeal of a decision by a Citizenship Judge was that of correctness.
¶ 15 More recently, there appears to have been a consensus on the standard of reasonableness simpliciter (see inter alia the following cases: Chen v. Canada (Minister of Citizenship and Immigration) 2004 FC 1693, [2004] F.C.J. No. 2069; Rasaei v. Canada (Minister of Citizenship and Immigration) 2004 FC 1688, [2004] F.C.J. No. 2051; Gunnarson v. Canada (Minister of Citizenship and Immigration) 2004 FC 1592, [2004] F.C.J. No. 1913; Canada (Minister of Citizenship and Immigration) v. Chen 2004 FC 848, [2004] F.C.J. No. 1040; Canada (Minister of Citizenship and Immigration) v. Fu 2004 FC 60, [2004] F.C.J. No. 88; Canada (Minister of Citizenship and Immigration) v. Chang 2003 FC 1472, [2003] F.C.J. No. 1871; Canada (M.C.I.) v. Mueller, [2005] F.C. 227.
¶ 16 My colleague Tremblay-Lamer J. justified this approach as follows:
In the case at bar, where the court must verify that the Citizenship Judge has applied one of the accepted residency tests to the facts it raises, in my view, a question of mixed fact and law (Director of Investigation and Research v. Southam Inc., [1997] 1 S.C.R. 748). Taking into account that some degree of deference is owed to the specialized knowledge and experience of the Citizenship Judge, I would conclude that the applicable standard of review is that of reasonableness simpliciter. (Canada (M.C.I.) v. Fu, [2004] F.C.J. No. 88, at paragraph 7).
¶ 17 Considering the pragmatic and functional approach developed by the Supreme Court of Canada, inter alia in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, it is my opinion that this standard of review is in fact the most appropriate in the circumstances. Accordingly, it would be appropriate to show deference to the extent that it is established that the judge understood the case law and that he weighed the facts and applied them to the test provided under the Act.
¶ 18 A careful review of this Court's case law indicates that different interpretations have been accepted regarding the interpretation that must be given to the residency requirement found under paragraph 5(1)(c) of the Act. A Citizenship Judge can adopt any of these different interpretations to determine whether the applicant meets the requirements of the Act; insofar as the judge has not made any unreasonable error in applying this interpretation to the evidence that was submitted to him, this Court will not intervene.
[14] In light of the case law referred to above, the applicable standard of review is reasonableness simpliciter.
The Residence Requirement Under the Citizenship Act
[15] The Citizenship Judge asked the applicant to supply annual reports from his company. On the basis of that information, the Citizenship Judge determined that the applicant had contradicted himself several times and had not resided in Canada as he claimed.
[16] First, the applicant alleges that he really was in Canada for the minimum number of days required under the Citizenship Act. However, the Citizenship Judge expressed serious doubts on that point, stating that he could not conclude that the applicant really had been in Canada for the 1,110 days as claimed. Second, the applicant alleges that the Citizenship Judge had to interpret Re Koo, supra, in order to establish his connection with Canada.
[17] As listed by my colleague de Montigny J. in Xu v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 868 (QL) at paragraph 17, the following are the essential criteria from Re Koo:
In order to determine whether the Applicant "regularly, normally or customarily lives" in Canada, she turned her mind to the six questions suggested by Madam Justice Reed in Re Koo, [1993] 1 F.C. 286, which read as follows:
1) was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
2) where are the applicant's immediate family and dependents (and extended family) resident?
3) does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
4) what is the extent of the physical absences -- if an applicant is only a few days short of the 1,095-day total it is easier to find deemed residence than if those absences are extensive?
5) is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted employment abroad?
6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
[18] Concerning Question 1, while it is true that the applicant was absent during several trips, he was in Canada for 1,110 days. Since the Citizenship Judge could not provide persuasive evidence in support of his claim that this was not true, it seems fair to me to state that the applicant was, in fact, present in Canada before submitting his citizenship application. The fact that the judge had difficulty deciphering the stamps in the applicant’s passport does not justify his doubts concerning the number of days of absence from Canada. The only uncontested evidence supports the applicant’s statement. Concerning Questions 2 and 3, as was mentioned previously, his wife and two children are Canadian citizens. The trips that he made were generally of short duration and for business purposes.
[19] According to the Citizenship Judge, since he believed that the applicant was not in Canada during the days stated, Question 4 from the test in Re Koo, supra, would not normally be assessed in the applicant’s favour. However, as was noted in Yang v. Canada (Minister of Citizenship and Immigration) (2002), 216 F.T.R. 117; F.C.J. No. 114 (QL), a Citizenship Judge who does not consider all the relevant evidence concerning the existence of a pied-à-terre in Canada applies a very restrictive approach in his or her interpretation of the residence requirement. This finding by the Citizenship Judge is not based on evidence, or even logic. As I indicated in paragraph 22 of Yang, supra:
He placed greater emphasis on the requirement that an applicant must be physically present in Canada and erred in assessing that the fourth factor of the test in Re Koo (physical presence) can be considered the most important of the six.
[20] Furthermore, the Citizenship Judge’s decision appears to address only the contradictions regarding the applicant’s business. At no time does he apply the reasoning in Re Koo, supra, to determine that he had serious doubts concerning the applicant’s residence. The applicant not only submitted a comprehensive list of his travel destinations, but also illustrated his attachment to the country by supplying complete documentation concerning his business and other activities in Canada. Apparently, the Citizenship Judge suspected that the applicant’s Canadian income was not sufficient to support his family, and therefore he had to exploit opportunities outside the country. However, the fact that the bank had stated in a letter that the applicant had over $3,000,000.00 in investments was overlooked. Since the evidence offered by the applicant appears to be truthful and since the Citizenship Judge does not address the issue of the number of days in his decision, it seems clear to me that the applicant was, in fact, present in Canada for the required number of days.
[21] With respect to Question 5, the applicant made 11 trips outside of Canada during the relevant period, all of which were on business or for personal reasons, for example, to manage his mother-in-law’s estate after she died. In support of this statement, the applicant not only provided the Citizenship Judge with copies of the exact departure and return dates from his passport, but also submitted copies of catalogues from the optical trade shows that he attended. The evidence shows that the applicant’s longest trip was for 46 days, while the others averaged between 7 and 18 days. Thus, it is clear that these were temporary absences.
[22] Finally, Question 6 stipulates that the applicant must have established a connection with Canada. The applicant submitted evidence of a lease, telephone statements, accounts with Videotron, Bell and Rogers. He provided evidence of his company’s incorporation, his bank transaction records and copies of his income tax returns. It should also be noted that his wife has been a Canadian citizen since August 21, 2003, that his two children were born in Canada in 2003 and 2004 and that he asserts that he has to be involved in the care of his children, owing to their young age. The applicant shows no other factual attachment to any other country. Moreover, a number of his business trips to meetings in other countries were to third countries, not Morocco. As I mentioned in Badjeck v. Canada (Minister of Citizenship and Immigration) (2001), 214 F.T.R. 204; F.C.J. No. 1804 (QL) at paragraph 29:
The plaintiff further submitted that, contrary to what was found by the citizenship judge, the residence condition mentioned in s. 5(1)(c) of the Act involves questions more fundamental than simply counting the days spent in Canada. Thus, the nature of the plaintiff's attachment and loyalty to Canada demonstrate and establish a real attachment to Canada: Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 (QL) (F.C.). There is no attachment similar to that which he has with Canada to any other country or any significant link to any country other than Canada: Canada (Minister of Citizenship and Immigration) v. Yang, [1999] F.C.J. No. 423 (QL) (F.C.)
[23] There is no doubt that the applicant has demonstrated his connection to Canada.
[24] While it may be true that the evidence provided by the applicant contained some contradictions, they were irrelevant in terms of determining his residence in Canada. Documents such as his company’s annual reports and his visits to the doctor are not indicative of the fact that the applicant was not present in Canada. If a citizenship judge suspects that the applicant was physically present in Canada for too few days, he must then examine whether the applicant has a sufficient connection with Canada. However, in this case, the Citizenship Judge did not show in his decision that the applicant was not present in Canada for 1,095 days. He merely stated that, since he noted contradictions in the annual reports, this meant that the applicant was not in Canada and therefore did not satisfy the criterion of 1,095 days. Prima facie, this is absurd, and it becomes even more ridiculous if we consider that the Citizenship Judge did not even assess the applicant’s connection with Canada, as set out by the case law in Re Koo, supra.
[25] If the Citizenship Judge was unable to demonstrate that the applicant did not meet the criteria set out in that decision, he could then reasonably decide that the latter did not meet the residence requirements set out in subsection 5(1) of the Citizenship Act. However, in this case, it seems to me that the Citizenship Judge considered none of the criteria from Re Koo, supra, and therefore his decision to dismiss the citizenship application by the applicant is not based on reasonable grounds.
[26] The respondent alleges that the Citizenship Judge did not have to interpret Re Koo, since Canadian residence could not be established, as provided in Ahmed v. Canada (Minister of Citizenship and Immigration) (2002), 225 F.T.R. 215; F.C.J. No. 1415 (QL). Clearly, the facts in Ahmed, supra, are totally unlike those in the present case. Mr. Ahmed had left Canada 15 months after his arrival and had not re-entered the country before applying for citizenship; under such circumstances, it was not necessary to analyse the applicant’s residence, as suggested in Re Koo. That is of little consequence in this case, since this applicant clearly established his residence here before initiating his citizenship application.
[27] I concur with the applicant’s argument that the Citizenship Judge misinterpreted the case law and the evidence. In light of the questions set out in Re Koo, supra, and the evidence available to the Citizenship Judge, I am not convinced that the latter understood the case law properly and, in my opinion, he did not analyse the relevant criteria.
JUDGMENT
The decision of the Citizenship Judge was therefore unreasonable. Consequently, I allow the application for judicial review and refer the matter back to a different citizenship judge.
Deputy Judge
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-677-05
STYLE OF CAUSE: AHMED TAGNAOUTI MOUMNANI v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 16, 2005
REASONS BY: The Honourable Mr. Justice
Paul U.C. Rouleau
DATED: November 24, 2005
APPEARANCES:
Julius Grey FOR THE APPLICANT
Mario Blanchard FOR THE RESPONDENT
SOLICITORS OF RECORD:
GREY, CASGRAIN FOR THE APPLICANT
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General
Of Canada