BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Introduction
[1] These reasons follow the hearing of an appeal pursuant to subsection 14(5) of The Citizenship Act[1](the “Act”) from a decision of a Citizenship Judge (the “Judge”) whereby the Judge declined to approve the Applicant’s application for Canadian citizenship “…because you [the Applicant] have not met the residence requirement under paragraph 5(1)(c) of the Act.” The decision under appeal is dated April 4, 2006.
BACKGROUND
[2] The Applicant was born in the Union of Soviet Socialist Republics on the 13th of August, 1975. He is a citizen of the Russian Federation and of no other country.
[3] The Applicant’s mother and his father divorced. The Applicant’s mother remarried to a Canadian citizen and, at all relevant times, she and her husband lived in Canada.
[4] The Applicant alleges that he came to Canada to stay on the 19th of September, 1998 on a student authorization. He further alleges that prior to that date, he had entered Canada several times on valid visas. He remained in Canada until late December, 2000 on a further student authorization. On the 23rd of December, 2000 he became a permanent resident of Canada.
[5] Until the Applicant obtained permanent resident status, he studied at a range of academic institutions in Canada including McGill University in Montreal from which he obtained a masters degree in Architecture. After obtaining his permanent resident status, he worked for various Canadian-based employers.
[6] On the 18th of August, 2001, the Applicant married in Toronto. He submitted a family class sponsorship for his wife who, under the authority of that sponsorship, became a permanent resident of Canada on the 29th of September, 2003.
[7] The Applicant applied for Canadian citizenship on or about the 22nd of November, 2003. He alleges that he had been physically present in Canada for a total of 840 days between the 22nd of November, 1999 and the 22nd of November, 2003.
THE DECISION UNDER REVIEW
[8] The Judge interviewed the Applicant on the 9th of November, 2005. At the close of the interview, the Judge requested that the Applicant provide additional documentation to support his application. The form used to record the request was signed by both the Judge and the Applicant. It included the following acknowledgement by the Applicant:
I understand that should such documentation not be provided my Citizenship Application will be non-approved by a Judge.[2]
The Applicant provided documentation, as requested. The Judge was apparently not satisfied with the documentation provided. He requested further documentation and the Applicant responded. The decision under review followed.
[9] In the decision under review[3], the Judge wrote:
Subsection 5(1)(c) of the Citizenship Act requires the accumulation of at least three years of residence in Canada within the four years immediately preceding the date of application in the manner prescribed by that subsection of the Act. You stated in your application that you were physically present in Canada for 748 days during the relevant period and absent for 515 days. You are 347 days short of the minimum requirement of 1,095 days as prescribed in paragraph 5(1)(c) of the Act (Total number of days in Canada is 1263 based on your application dated November 22, 2003).
While the physical presence of 748 days referred to is less than that attested to by the Applicant and earlier referred to, nothing turns on that difference. The difference between 748 days presence and 1263 days in Canada is accounted for by the fact that each day present before acquiring permanent resident status only counts as one-half day.
[10] The Judge then went on to comment at some length, and critically, regarding the documentation provided by the Applicant. Following that commentary, under the heading “Decision:” the Judge concluded with the words earlier quoted in these reasons. The Judge noted that he had considered the possibility of a favourable discretionary recommendation under subsection 5(3) or 5(4) of the Act and that he concluded against such a favourable recommendation. His conclusion in that regard was not in dispute before the Court.
ANALYSIS
Standard of Review
[11] It was not in dispute for the Court that the appropriate standard of review on an appeal such as this is reasonableness simpliciter[4]. I am satisfied that, applying a pragmatic and functional analysis in this matter, there is nothing that would justify a variation from that standard.
The Substantive Issues
[12] Counsel for the Applicant raised the following issues before the Court: first, whether the learned Judge failed to clearly select and apply an appropriate test to determine whether the Applicant had met the residency requirement as set out in paragraph 5(1)(c) of the Act; secondly, whether the Judge failed to consider the totality of the evidence that was before him when he rendered his decision as to whether the Applicant had met the residency requirement; and finally, whether the Judge failed to provide adequate reasons as to why the Applicant did not meet the residency requirement.
Selection and Application of an Appropriate Test and Failing to Consider the Totality of the Evidence
[13] In Ahmed v. Canada (Minister of Citizenship and Immigration)[5], my colleague Justice Layden-Stevenson wrote at para. 4 of her reasons:
Because the “issue” regarding the divergence of opinion in Federal Court jurisprudence with respect to the residency requirement of the Act inevitably surfaces during argument on citizenship appeals, I believe that it is beneficial to distinguish between the instances when that issue has relevance and when it does not. In my view, the “issue” regarding the divergence of opinion Federal Court jurisprudence is not relevant to the issue of whether an appellant has established a residence in Canada. In Goudimenko v. Canada (Minister of Citizenship and immigration)…the appellant argued that his absences for school ought to have been deemed residence. At paragraph 13, I stated:
The difficulty with the appellant’s reasoning is that it fails to address the threshold issue, his establishment of residence in Canada. Unless the threshold test is met, absences from Canada are irrelevant; Canada (Secretary of State) v. Yu …; Re Papadorgiorgakis, …; Re Koo, …; Re Choi …. In other words, a two stage inquiry exists with respect to the residence requirements of paragraph 5(1)(c) of the Act. At the first stage, the threshold determination is made as to whether or not, and when, residence in Canada has been established. If residence has not been established, the matter ends there. If the threshold has been met, the second stage of the inquiry requires a determination of whether or not the particular applicant’s residency satisfied the required total days of residence. It is with respect to the second stage of the inquiry, and particularly with regard to whether absences can be deemed residence, that the divergence of opinion in the Federal Court exits.
[citations omitted]
[14] While the decision here under appeal does not explicitly provide that residence of the
Applicant in Canada was established before the Judge, I am satisfied that a finding of establishment
of residence is implicit and my conclusion in that regard was not in dispute. Thus, the Judge turned directly to the second stage of the inquiry, that is, a determination of whether or not the Applicant’s residency satisfied the required total days of residence. It is in this regard that the divergent views of this Court are exemplified by the decisions in Re Pourghasemi[6], Re Papadogiorgakis[7]and Re Koo[8]arises.
[15] In Hsu v. Canada (Minister of Citizenship and Immigration) [9], my colleague Justice Heneghan wrote at paragraph 4 of her reasons:
The case law on citizenship appeals has clearly established that there are three legal tests which are available to determine whether an applicant has established residence within the requirements of the Citizenship Act…. In this regard, see Lam v. Canada (Minister of Citizenship and Immigration)…According to that case, a Citizenship Judge may adopt either the strict count of days, consideration of the quality of residence or, analysis of the centralization of an applicant’s mode of existence in this country.
[Citations omitted]
[16] The threes tests described by Justice Heneghan equate to the Pourghasemi, Papadogiorgakis and Koo tests mentioned earlier.
[17] It was not in dispute before the Court that, while a Citizenship Judge may choose to rely on any one of the three tests, it is not open to him or her to “blend” the tests. Counsel for the Applicant here urged that the Judge erred in a manner that would justify granting this appeal in failing to identify which of the three tests he relied on and further, in “blending” the Pourghasemi test with elements of the other two tests. Counsel urged that by citing a strict count of days conclusion and then going on to refer at significant length and in a critical manner to the Applicant’s documentary evidence, the Judge clearly engaged in a “blending” of tests.
[18] I reach a different conclusion. The Judge had clearly, by the close of his interview with the Applicant, reached a conclusion that the Applicant could not succeed on the basis of a strict count of days test. As earlier indicated in these reasons, he invited the Applicant to submit documentation and advised the Applicant that, if he did not do so, his application for Canadian citizenship must fail. The Judge considered the documentation submitted and, as reflected in his decision letter, clearly found it unsatisfactory to support a determination favourable to the Applicant under either of the more flexible tests. Thus, and I regard this to be apparent on the face of the decision letter, he reverted to the “strict count of days” test to reject the Applicant’s application. He did not “blend” or confuse the tests. Further, I find no basis on which to conclude that the Judge ignored any of the documentary evidence that was before him.
Adequacy of Reasons
[19] Counsel for the Applicant urged that, against the reasoning of Justice Pelletier, as he then was, adopting the reasoning of the New Brunswick Court of Appeal in Boyle v. New Brunswick (Workplace Health, Safety and Compensation Commission)[10] wherein it was held that merely listing the evidence considered was not sufficient, but rather that reasons must explain to the parties why the tribunal decided as it did and must also be sufficient to enable an appeal court to discharge its appellate function, the decision letter here under consideration was simply inadequate as reasons. Once again, in Ahmed v. Canada (Minister of Citizenship and Immigration)[11] Justice Layden-Stevenson wrote at paragraph 13 of her reasons:
In R. v. Sheppard…, the Supreme Court of Canada discussed the adequacy of reasons. Although decided in the context of criminal law, the principles enunciated in Sheppard can be modified, as required, to fit the context of any number of matters. The Supreme Court held that the requirement of reasons is tied to their purpose and the purpose varies with the context. For purposes of citizenship appeals, I consider the following propositions from Sheppard, modified as required for the context, to be applicable:
(a) The delivery of reasoned decisions is inherent in the judge’s role.
(b) An unsuccessful applicant should not be left in doubt as to why he or she was not successful.
(c) Lawyers for parties may require reasons to assist them in considering and advising with respect to a potential appeal.
(d) Not every failure or deficiency in the reasons provides a ground of appeal.
(e) Reasons provide an important function in the Appellate process. Where the functional needs are not satisfied, the Appellate Court may conclude there is an error of law depending on the circumstances of the case and the nature and importance of the decision being rendered.
(f) The judge is not held to some abstract standard of perfection.
(g) The judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the judge’s decision.
(h) While it is presumed that judge’s know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court.
(i) Where the decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons, is sufficient. There is no need in that case for a new hearing.
[citation omitted]
[20] I note in particular paragraph (f) in the foregoing quotation:
The judge is not held to some abstract standard of perfection.
[21] The reasons for decision here under consideration fall short of meeting “…some abstract standard of perfection”, but that is not the test. I am satisfied that the reasons for decision here under consideration are sufficient to fulfill each of the foregoing propositions. In brief: the
reasons clearly and succinctly demonstrate the Judge’s conclusion that, against the “strict count of days” test, that is to say the Pourghasemi test, the Applicant’s application for Canadian citizenship must fail. The fact that the Judge then goes on to comment extensively on the documentary evidence provided by the Applicant is irrelevant to the decision except in so far as it serves to explain why the Judge chose not to, or perhaps felt compelled not to, adopt the “quality of residence” test or the “centralization of mode of existence” test, both of which were open to him as alternatives to the “strict count of days” test. That the Judge then went on, without reference back to his conclusion on the “strict count of days” test, to conclude that he was unable to approve the Applicant’s application because the Applicant had not met the residence requirement under paragraph 5(1)(c) of the Act, is entirely insufficient, if indeed, it is confusing at all, to justify allowing this appeal.
[22] In short, I find the reasons provided by the learned Judge for his decision to be entirely adequate, albeit that that they are somewhat short of some “abstract standard of perfection”.
Conclusion
[23] For the foregoing reasons, as summarized to counsel at the close of hearing, this Appeal will be dismissed.
Ottawa, Ontario
November 29, 2006
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-908-06
STYLE OF CAUSE: IVAN TULUPNIKOV
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 21, 2006
REASONS FOR JUDGMENT: GIBSON J.
APPEARANCES:
|
Stephen Green
|
|
|
Tamrat Gebeyehu
|
SOLICITORS OF RECORD:
|
Green and Spiegel Barristers and Solicitors Toronto, Ontario |
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario.
|
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[1] R.S.C.1985, c. C-29.
[2] Tribunal Record, page 091.
[3] Tribunal Record, pages 085 to 088.
[4] See :Tshimanga v. Canada (Minister of Citizenship and Immigration)[2005] F.C.J. No.1940(QL);2005 F.C. 1579 at paras.12 and following.
[5] [2002] F.C.J. No. 1415 (QL); 2002 F.C.T. 1067.
[6] [1993] F.C.J. No.232.
[7] [1978] 2F.C.208.
[8] [1993] 1F.C.286.
[9] [2001] F.C.J. No. 862 (QL); 2001 F.C.T. 579.
[10] (1996), 179 N.B.R.(2d) 43.
[11] Supra, footnote 5.