BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR DECISON
INTRODUCTION
[1] These reasons follow the hearing on the 20th of February, 2007 of an appeal pursuant to subsection 14(5) of the Citizenship Act[1] of a decision of a Citizenship Judge (the “Judge”) wherein the Judge dismissed the application for Canadian citizenship of the Applicant. The decision under appeal is dated the 19th of January, 2006.
[2] Subsection 14(5) of the Citizenship Act reads as follows:
[3] While the matter before the Court is an appeal, by virtue of Rule 300(c) of the Federal Courts Rules[2], under those Rules the matter is dealt with in the same manner as an application for judicial review. Thus, it is dealt with essentially on the basis of the record that was before the Judge. In this matter, an extensive affidavit of the Applicant, attesting to what transpired before the Judge, was before the Court. No objection was taken to the Court considering that affidavit. No responding affidavit was filed and no cross-examination was undertaken. Thus, I take the substance of the affidavit to be uncontested.
BACKGROUND
[4] The Applicant is a citizen of Tunisia, born in 1969. He first came to Canada in February 1999. He became a permanent resident of Canada in June 1999. Prior to becoming a permanent resident, he had apparently diligently searched for work in Canada in the field in which he was qualified. He was unsuccessful in finding work in that field. In the result, he incorporated his own business in the field in which he was qualified and set out to establish himself economically. In so doing, he spent substantial time in China and in Tunisia sourcing materials that he marketed in Canada. He attests that his time in China was directly related to the operation of his Canadian-based business. He also attests that much of his time in Tunisia was spent on the same basis. That being said, his time in Tunisia also provided him an opportunity to visit his parents.
[5] The Applicant applied to sponsor his parents to come to Canada as permanent residents. That sponsorship application and his parents’ application were eventually successful, but at the time of the hearing before the Judge, his parents remained in Tunisia.
[6] The Applicant’s sister came to Canada as a permanent resident in 2001.
[7] The Applicant applied for Canadian citizenship in 2004. Before his application for Canadian citizenship came on for hearing, the Applicant’s sister gave birth to twins in Canada. One of the twins died. That child was buried in Canada thus, in the submission of the Applicant, further establishing his intent and the intent of his family members to make Canada their home.
[8] The Applicant’s application for Canadian citizenship came on for hearing before the Judge on the 14th of December, 2005.
THE DECISION UNDER REVIEW
[9] By decision letter dated the 19th of January, 2006, the Judge rejected the Applicant’s application for Canadian citizenship. She enumerated the Applicant’s absences from Canada, almost entirely in China and Tunisia, and concluded:
You are absent for 885 days and present for 571 days. You are 524 days short of the minimum of 1095 days as required in paragraph 5(1)(c) of the [Citizenship] Act.
[10] The Judge noted the absence of a relevant passport or other evidence disclosing the Applicant’s whereabouts for more than two (2) years during the relevant period. In the result, she wrote:
…only the absences from September 2003 to June 2004 could be verified.
The Judge continued:
I note that you have spent more days in China than in Canada [in the relevant period]. You are in China for 594 days and in Canada for 571 days within the relevant period.
[11] The Judge then referred to documentation relied upon by the Applicant to establish his presence and establishment in Canada. That documentation included a “Certificate of Status” for his incorporated business, a lease agreement, a property tax bill, an automobile insurance policy, a telephone bill, banking information, notices of income tax assessments and a related T4 slip, evidence of memberships in the Spanish Centre in Toronto and the Canadian Automobile Association, an Ontario Health Card, a Social Insurance number, a permanent resident card, documentation related to his participation in a trade mission to China headed by the Prime Minister of Canada and the like. The Judge wrote:
…I note that these documents are passive indicators of residence that can be established without personally living in Canada over an extended period of time. Thus they do not assist you in demonstrating the strength or quality of your connection to Canada.
[12] Although the Judge identified the issue before her as whether or not the Applicant had accumulated at least three (3) years (1,095 days) of residence in Canada within the four (4) years (1,460) days immediately preceding the date of his application for Canadian citizenship, the Judge went on to analyze whether or not the Applicant met the portion of the test for approval of an application for Canadian citizenship that is described in paragraph 5(1)(c) of the Citizenship Act. She noted that, pursuant to Re Koo[3] “…the jurisprudence which is not firmly entrenched does not require physical presence for the whole 1,095 days…”. The Judge concludes that the residency test can be articulated as follows:
Is Canada the place where the Applicant “regularly, normally or customarily lives?; or another formulation of the same test: Is Canada the country in which the Applicant has centralized his or her mode of existence?
[13] The Judge then goes on to articulate the six (6) questions identified in Re Koo to assist in determination of the questions posed and responds, with great respect to her, in uneven detail to each of the six (6) questions. In particular, she responds to the sixth question: “What is the quality of the connection with Canada: Is it more substantial than that which exists with any other country?” in the following terms:
It is difficult to establish a connection with Canada when one spends so little time here. The applicant was out of the country for 889 days of the possible 1,460 days in the relevant 4 year period. There are only 3 occasions where the applicant spends 1 month or more in Canada within the 4 year period. …
It is difficult to absorb Canadian values and integrate oneself into Canadian society with such long absences.
[14] Although the Applicant attests that the Judge was wrong in indicating that there were only three (3) occasions when he spent one month or more in Canada in the relevant period, and that indeed, there were six (6) such occasions, I am not satisfied that anything turns on this.
[15] The Judge concluded:
After reviewing your application and the evidence provided, I conclude that Canada is not the place where you “regularly, normally or customarily live.” You have not centralized your mode of existence in Canada and in fact spend more days in China than in Canada.
[16] Thus, the Judge rejected the Applicant’s application for Canadian citizenship.
THE ISSUES
[17] Before the Court, counsel for the Applicant, in addition to brief submissions on the standard of review on an appeal such as this, raised only two (2) issues. Those issues are identified in the Applicant’s memorandum of fact and law in essentially the following terms: first, did the Judge violate natural justice by denying the Applicant the right to be heard, with which counsel incorporated a concern that the Judge improperly fettered her discretion in denying the Applicant’s application; and second, whether or not the analysis provided by the Judge in assessing whether the Applicant met the residency requirement was deficient in such a way as to constitute reviewable error.
ANALYSIS
a) Standard of Review
[18] On the issue of violation of natural justice, counsel urged that the standard of review is correctness. In this regard, counsel referred to Hassani v. Canada (Minister of Citizenship and Immigration)[4] where Justice Mosley, in an immigration context, wrote at paragraph 13:
Questions of procedural fairness should be assessed on a correctness standard:. …Where a breach of the duty of fairness is found, the decision should generally be set aside:.
For the foregoing propositions, Justice Mosley cited substantial authority.
[19] On the issue of the adequacy of the Judge’s analysis, counsel for the Applicant urged that the standard of review was reasonableness simpliciter. For this proposition, she cited Canada (Minister of Citizenship and Immigration) v. Mueller[5], a citizenship appeal, where Justice Snider wrote at paragraph 4 of her reasons:
Decisions of this Court on the standard of review to be applied to decisions of citizenship judges [have] recently coalesced around a standard of reasonableness simpliciter… . Accordingly, as long as there is a demonstrated understanding of the case law and appreciation of the facts and their applicability to the statutory test, deference should be shown. …
[citations and some text omitted]
[20] Counsel for the Respondent took no issue with the position of counsel for the Applicant on standard of review. The Court adopts the foregoing positions.
b) Denial of the right to be heard including fettering of discretion
[21] At paragraphs 12 and 13 of his affidavit filed in this matter, the Applicant attests:
...At the outset of the interview Judge Potts immediately told me that she could not approve my application as I had been absent for 854 days during the four years preceding my applicant [sic] for Canadian citizenship.
I was extremely disturbed by this opening remark since it seemed to me to indicate that Judge Potts had already predetermined that she would be refusing my case based on my physical absence from the country. …
[22] Nonetheless, the Applicant continues to attest that he presented substantial argument in support of his application.
[23] At paragraph 14 of his affidavit, the Applicant attests:
My efforts to persuade the judge were to no avail. Judge Potts told me point blank that “the bottom line is that these are all meaningless factors given the number of days that I [sic] had spent out of Canada” This assessment only re-enforced my belief that Judge Potts had closed her mind to my case, that what mattered to her was physical and not constructive residence, and that she was not prepared to entertain any decision other than a denial of my application.
[24] At paragraph 17 of his affidavit, the Applicant once again refers to what he considered to be the Judge’s “pre-determined” decision that she was going to refuse his citizenship application. At paragraph 18 of his affidavit, he attests that the Judge: “…also expressly stated to me that there was not point in her approving my application; if she did so the Minister would automatically appeal the decision, and the case would ultimately be refused.”
[25] If the interventions attested to by the Applicant are in fact accurate, and there was no responding evidence as to what actually transpired at the hearing of the Applicant’s application, they are indeed somewhat unfortunate. It is open to a judge to forewarn an applicant about weaknesses in his or her case. But that is not to say that pre-judging the matter is at all appropriate or that concern about a result on an appeal should govern. That being said, against a careful reading of the reasons for decision here under review, I conclude that the learned Judge did not pre-judge this matter or fail to provide the Applicant with a fair hearing. The Applicant’s own affidavit attests to the fact that he was provided an extensive opportunity to respond to the Judge’s concerns. Further, the decision under review itself goes to some length to demonstrate that the learned Judge not only understood the case before her and the principles of law that were applicable, but also that she addressed the case before her in full and complete terms and, in general, applied the appropriate principles of law.
c) Adequacy of the analysis reflected in the decision under review
[26] As just forecasted, I am satisfied that the decision under review was entirely adequate to fulfill the responsibilities of the presiding Judge.
[27] In Seiffert v. Canada (Minister of Citizenship and Immigration)[6], my colleague Justice Campbell wrote at paragraph 9 of his reasons:
First, I agree with Justice Snider’s conclusion that a citizenship appeal can be granted for failure to provide a proper analysis of the evidence. I consider this requirement of a citizenship judge to be a fundamental part of the duty of fairness. Second, I accept the proposition advanced by the Respondent that there is no hard and fast rule that important factors have to be addressed in the manner and order which Justice Reed suggests, but, nevertheless, the decision must leave no doubt that all important relevant factors were addressed in reaching the decision. …
The reference to important factors to be addressed in the manner and order which Justice Reed suggests, is of course, to her decision in Re Koo, supra.
[28] I adopt Justice Campbell’s reasoning with the exception that I differ on whether adequacy of reasons relates to the duty of fairness. That being said, I share the conclusion that inadequate reasons can result in reviewable error. The latter position is consistent with the position put forward by counsel on this appeal and I concur in her characterization of the error reflected by inadequate reasons.
[29] In Zeng v. The Minister of Citizenship and Immigration[7], Justice Mosley wrote at paragraphs 17 and 21 of his reasons:
The respondent submits that the citizenship judge applied the central connection test from Re Koo properly. There is no error in referring to dicta in Re Koo commenting upon the Parliamentary intent; in fact, the extent of physical absences is a component in the central connection test as outlined in Re Koo. Dr. Zeng’s physical absences were great, so it bore mentioning. It was not the sole criterion relied upon. This does not suggest that the judge misapplied the law.
…
It is not surprising, given the amount of time Dr. Zeng spent outside of Canada during the four years prior to his application, that the citizenship judge would focus on those absences and the reasons for them in arriving at his findings. Considering the Re Koo factors, there was no physical presence in Canada for a long period prior to recent absences. Indeed the pattern was of long absences interspersed with periods in Canada. Dr. Zeng was not “a few days short” of the requisite number. He had not established himself here for any length of time before he took employment with Cargill and began to travel abroad for prolonged periods. While there was evidence before the citizenship judge that Dr. Zeng was to be relocated back to Cargill headquarters in Winnipeg at the end of four years, in my view his employment abroad was not the type of temporary arrangement contemplated by Justice Reed in Re Koo.
While the factual background before my colleague in Zeng was substantially different from that in this matter, I adopt the principles underlying my colleague’s analysis as my own here.
[30] In Gunnarsson v. The Minister of Citizenship and Immigration[8], my colleague Justice MacTavish concluded her analysis with the following brief paragraph:
The source of Mrs. Gunnarsson’s concern is ultimately with the weight ascribed by the Citizenship Judge to various facts. While a different Citizenship Judge might have come to a different conclusion on the basis of these facts, I cannot find that the decision in this case was unreasonable.
I reach the same conclusion here.
CONCLUSION
[31] For the foregoing reasons, this appeal from a decision of a Citizenship Judge will be dismissed.
Ottawa, Ontario
February 28, 2007
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-497-06
STYLE OF CAUSE: ISSAM HECHMI
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 20, 2007
REASONS FOR DECISION: Gibson J.
APPEARANCES:
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Catherine Bruce
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Aviva Basman
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SOLICITORS OF RECORD:
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Law Offices of Catherine Bruce Toronto
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Mr. 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] SOR/98-106.
[3] [1993] 1 F.C. 286 (T.D.).
[4] [2006] F.C.J. No. 1597, October 25, 2006.
[5] [2005] F.C.J. No. 266, February 10, 2005.
[6] [2005] F.C.J. No. 1326, August 5, 2005.
[7] [2004] F.C.J. No. 2134, December 16, 2004.
[8] [2004] F.C.J. No. 1915, November 12, 2004.