Friday, January 16, 2015

FEDERAL COURT DISCUSSES CITIZENSHIP REQUIREMENTS, HOPES FOR RESOLUTION OF INCONSISTENT RESIDENcy TEST

The case below illustrates the difficulties in the interpretation of the residency requirements and the lack of certainty provided in the Citizenship Act. This inconsistency will hopefully be resolved if the new Citizenship Act sections dealing with residency requirements come into force. The Federal Court is visibly uncomfortable with the current lack of resolution in that area.

Arwas v. Canada (Minister of Citizenship and Immigration)

Between
Miguel Angel Slikas Arwas, Applicant, and
The Minister of Citizenship and Immigration, Respondent
And between
Karine Marie Christiane Wachter, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 1299
2014 FC 575

Dockets: T-1651-13, T-1652-13

 Federal Court
Ottawa, Ontario

LeBlanc J.


Heard: June 2, 2014.
Judgment: June 17, 2014.
(42 paras.)



JUDGMENT AND REASONS
1     LeBLANC J.:-- These are appeals brought under section 21 of the Federal Courts Act, RSC 1985, c C-7, and paragraph 14(5) of the Citizenship Act, RSC 1985, c C-29, against the decision of a citizenship judge denying the applicants' applications for Canadian citizenship on the ground that they do not meet the residency requirement as defined by paragraph 5(1)(c) of the Citizenship Act (the Act).Given the overlap of the facts and arguments, these two appeals were heard, and are decided, together.
I. Background
2     The applicants are husband and wife. Mr. Arwas is a citizen of Venezuela. Ms. Wachter is a French citizen. Both became permanent residents upon arrival in Canada on April 13, 2006. They came from Trinidad and Tobago where the husband, a petroleum engineer, was employed. They applied for Canadian citizenship on December 15, 2010. As part of the conditions they had to meet in order to be granted Canadian citizenship, they needed to accumulate, within the four years immediately preceding the date of their citizenship applications, at least three years of residence in Canada.
3     That condition, embedded in paragraph 5(1)(c) of the Act, reads as follows:

·       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; 
...
* * *

·       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; 
[...]
4     During the four year residency assessment period applicable to them, which was from December 15, 2006 to December 15, 2010, the applicants were physically present in Canada a total of 866 days, in the case of Mr. Arwas, and of 879 days, in the case of Ms. Wachter. Those figures are not contested.
5     The applicants' citizenship applications were dismissed on August 7, 2103. Having opted for an interpretation of paragraph 5(1)(c) of the Act which requires being physically present in Canada for the minimum amount of time contemplated that provision (1,095 days out of 1,460), the citizenship judge found the applicants to be well short of that minimum threshold. As a result, he rejected their applications on the ground that they did not meet the Act's residency requirement.
6     The applicants claim that the citizenship judge committed a reviewable error by mixing qualitative and quantitative factors in his analysis. As the Court understands it, the applicants contend that the judge erred by resorting to qualitative factors in his quantitative analysis, something he need not, and could not, do. Alternatively, they claim that since he did resort to such factors, the citizenship judge was bound to proceed to a qualitative analysis of the residency requirement, something which might have allowed them to meet that requirement despite not having been physically present in Canada for at least 1,095 days out of 1,460 immediately preceding the filing of their citizenship applications.
7     The applicants seek an order quashing the citizenship judge's decision and sending the matter back for reconsideration by a different citizenship judge. They also seek full costs pursuant to Rule 400 of the Federal Courts Rules, SOR/98-106.
8     For the reasons that follow, these two appeals must fail.
II. Issue and Standard of Review
9     The only issue in these appeals is whether the citizenship judge erred in concluding that the applicants did not meet the Act's residency requirement and by dismissing, as a result, their applications for Canadian citizenship.
10     Appeals from decisions of citizenship judges are not judicial review proceedings per se although they are governed by the same rules of procedure (Rule 300(c) of the Federal Courts Rules). Such appeals used to take the form of de novo proceedings but it is no longer the case as of 1998. Before Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, which reshaped the standard of review doctrine applicable in the field of administrative law, there was a consensus amongst the judges of this Court that the standard of review on appeal of citizenship judges' decisions regarding the residency requirement was reasonableness simpliciter. It was understood that the question of whether a person meets that requirement was a mixed question of fact and law for which citizenship judges were owed some deference given their special degree of knowledge and experience (Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 981, at para 6, [2005] F.C.J. No 1204 (QL); Rizvi v Canada (Minister of Citizenship and Immigration), 2005 FC 1641 at para 5, [2005] F.C.J. No 2029 (QL); Canada (Minister of Citizenship and Immigration) v Takla, 2009 FC 1120 at para 25, 359 FTR 248).
11     As a result of Dunsmuir, above, the reasonableness simpliciter standard, together with the patent unreasonableness standard, were collapsed into a single form of reasonableness review, the standard of reasonableness (Dunsmuir, above at paras 44 and 45; Takla, above at para 30).
12     The applicants claim that, when the residency requirement in a citizenship appeal is at play, the standard of reasonableness calls for 'qualified deference'.
13     For the past three decades, there has been an ongoing debate within this Court as to what paragraph 5(1)(c) of the Act exactly means. This, in turn, has generated a debate as to the applicable standard of review of a citizenship judge's decision to opt for the interpretation that will form the basis of his or her analysis of the residency requirement in a given case. Some members of this Court say that this standard is correctness (Donohue v Canada (Minister of Citizenship and Immigration) 2014 FC 394 at para 13, [2014] F.C.J. No 443 (QL); El Ocla v Canada (Minister of Citizenship and Immigration) 2011 FC 533 at para 18, 289 FTR 241; Dedaj v Canada (Minister of Citizenship and Immigration) 2010 FC 777, 372 FTR 61). Others say it is reasonableness (Chowdhury v Canada (Minister of Citizenship and Immigration) 2009 FC 709 at para 24, 347 FTR 76; Raad v Canada (Minister of Citizenship and Immigration) 2011 FC 256 at para 21, [2011] F.C.J. No 306 (QL); Gavrilutav Canada (Minister of Citizenship and Immigration) 2013 FC 705 at paras 24 to 27, [2013] F.C.J. No 306 (QL); Shubeilat v Canada (Minister of Citizenship and Immigration) 2010 FC 1260 at para 14, 381 FTR 63).
14     The competing jurisprudential schools that have emerged from that debate have been described this way by Madame Justice Snider, in Sinanan v Canada (Minister of Citizenship and Immigration) 2011 FC 1347, [2011] F.C.J. No 1646 (QL):

·       [6] The Federal Court has, over the years, endorsed three different approaches to the question of how to interpret the words "resident" and "residence" in the legislation. Briefly stated, the three lines of jurisprudence fall into two categories: the "quantitative approach" and "qualitative approach". The quantitative approach is encompassed in the Re Pourghasemi test, applied by the Citizenship judge in this case, which asks whether the applicant has been physically present in Canada for 1,095 days out of the last four years. This has been referred to as the "physical presence" test. The qualitative approach was articulated in Re Papadogiorgakis, above, and refined in Re Koo, above. The test in Re Koo, as first utilized by Justice Reed, allows the citizenship judge to analyze six factors to determine whether an applicant has met the residence requirement by his or her "centralized ... mode of existence", even where the applicant falls short of the 1,095-day requirement. 

·       [7] In Lam v Canada (Minister of Citizenship and Immigration) (1999), 164 FTR 177 (QL), 87 ACWS (3d) 432 (TD), Justice Lutfy noted the divergence in the jurisprudence and concluded that, if a citizenship judge adopted any one of the three conflicting lines of jurisprudence, and if the facts of the case were properly applied to the principles of that approach, the citizenship judge's decision should not be set aside. 

·       [8] In the 12 years since Lam, the divergence in the Court has not been resolved. Over the past two years, some of my colleagues have attempted to galvanize the Court around one or the other of the tests. In Canada (Minister of Citizenship and Immigration) v Takla, 2009 FC 1120, 359 FTR 248, Justice Mainville determined that the qualitative approach should be the only test. In contrast, Justice Rennie, in Martinez-Caro v Canada (Minister of Citizenship and Immigration), 2011 FC 640, 98 Imm LR (3d) 288 [Martinez-Caro], carried out a careful analysis of the proper statutory interpretation of s 5(1) (c) of the Act and concluded that the physical presence test was the only correct test. 
15     Recently, Chief Justice Crampton, in Huang v Canada (Minister of Citizenship and Immigration) 2013 FC 576, [2013] F.C.J. No 629 (QL), revisited the issue and observed that the jurisprudence of this Court pertaining to these three tests remains divided and unsettled with the result that deference should be accorded to a citizenship judge's decision to apply any of these tests. He held that this approach was consistent with this Court's dominant view that the standard to be applied in reviewing citizenship decisions is reasonableness (Huang, above at paras 24 to 26).
16     In such context, I share the view that the standard applicable to the review of citizenship decisions is reasonableness, without need for any sort of qualification, and that this standard applies to the choice of the residency test made by the citizenship judge. This means, as is well established, that the review analysis is concerned with the existence of justification, transparency and intelligibility within the decision-making process and also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir, above at para 47; Chowdhury, above at para 28; Raad, above at para 22).
17     It is true that Parliament, when it enacted paragraph 5(1)(c) of the Act, intended one meaning in particular. However, ascertaining the legislator's intent is not always an easy task as evidenced by the complexity of our rules of statutory construction. My own view on this is that Parliament meant that the residency requirement shall be met by being physically present in Canada for a minimum period of time, ensuring thereby that an applicant's establishment in Canada is assessed by way of an objective marker that does allow for absences from Canada but that does it while establishing clear limits with regards to the amount of time an applicant can spend outside Canada. In this regard, I fully endorsed the reasoning of Mr. Justice Rennie in Martinez-Caro v Canada (Minister of Citizenship and Immigration) 2011 FC 640, 391 FTR 138, and that of Mr. Justice Muldoon in Pourghasemi (Re) (FCTD) [1993] 62 FTR 122.
18     That being said, in the area of statutory interpretation, as in others, competing views are the norm, not the exception, and the resolution of these issues is normally assured through the judiciary's appeal system. Here, however, as the Chief Justice and other members of this Court have pointed out on several occasions, Parliament has made the conscious choice that there be no appeal of a decision of this Court on an appeal from a decision of a citizenship judge (see paragraph 14(6) of the Act).
19     This has consequences. Here, this means that three reasonable interpretations of the Act's residency requirement "that have a long and rich heritage in this Court's jurisprudence" (Huang, above at para 25), have co-existed for quite some time without being put to the test through an appeal process.
20     But this is not inconsistent with the stare decisis principle, which was created, as is well known, to ensure consistency and certainty in the law. This principle, as it is understood and applied today in Canada, means only that prior decisions of higher courts are binding on lower courts of the same jurisdiction, for neither the Supreme Court of Canada nor many of the country's courts of appeal consider themselves bound by their own previous decisions. For lower courts, this means that they are free to analyze the reasons given in their own previous decisions and to decide whether to apply the precedent or to distinguish the rule contained therein, including matters of statutory interpretation (Woods Manufacturing Co. Ltd. v The King, [1951] SCR 504 at p 515, 1951 CanLII 36 (SCC); Régie des rentes du Québec v Canada Bread Company Ltd. (2013), 2013 SCC 46 at para 63, [2013] 3 SCR 125; Corlac Inc. v Weatherford Canada Ltd, 2012 FCA 261 at para 18, [2012] F.C.J. No 1295 (QL).
21     Therefore, as long as Parliament does not legislate to clarify the citizenship residency test or to create some form of an appeal process, or that this Court does not settle on one interpretation of the Act's residency requirement, therefore providing for a unique test and analysis in this area, the reality of this Court's jurisprudence is that it offers citizenship judges three possible tests when assessing whether a citizenship applicant meets that requirement. In these circumstances, it can hardly be said that a citizenship judge's decision to opt for one of these three tests does not fall within a range of possible, acceptable outcomes which are defensible in respect of the law.
22     This situation is less than optimal from the standpoint of ensuring consistency and certainty in the law but this was foreseeable when Parliament opted to invest this Court with the final say in citizenship matters. Some say that it is somewhat incongruous that the outcome of citizenship applications be determined on analysis and tests that differ from one judge to the next (Takla, above at para 47). As I said, this is far from a perfect situation but I nevertheless see nothing wrong in principle to the present state of affairs.
23     I therefore join ranks with those of my colleagues who share the view that citizenship judges are entitled to choose which test they desire to use among the three tests developed by this Court and not be in error for choosing one over the other (Choudhury, above at paras 71 and 72; Pourzand v Canada (Minister of Citizenship and Immigration) 2008 FC 395 at para 16, [2008] F.C.J. No 485 (QL); Xu v Canada (Minister of Citizenship and Immigration) 2005 FC 700 at paras 15 and 16, [2005] F.C.J. No 868 (QL); Rizvi v Canada (Minister of Citizenship and Immigration) 2005 FC 1641 at para 12, [2005] F.C.J. No 2029 (QL); Shubeilat, above at para 30). That choice does not have to be rationalized (Sinanan, above at para 11); it is a matter of discretion (Gavriluta, above at para 27).
24     In the end, citizenship judges are called upon to apply the chosen test consistently and to reach in any particular case a conclusion that falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law (Irani, above at para 14).
25     The role of this Court, in reviewing such decisions, is therefore not to substitute its opinion for that of the citizenship judge but to assess whether that judge applied the residency test chosen properly and in a coherent fashion (El Falah v Canada (Minister of Citizenship and Immigration) 2009 FC 736, at para 14; Shubeilat, above at para 15).
III. Analysis
26     As indicated above, the applicants claim that the citizenship judge erred in assessing the residency requirements by mixing qualitative and quantitative factors. More particularly, they contend that the judge was not entitled to resort to qualitative factors in his quantitative analysis, namely to facts outside the relevant residency assessment period. Alternatively, they say that having resorted to such factors, the citizenship judge was bound to proceed to a qualitative analysis of their residency situation, which he failed to do.
27     The applicants are right when they assert that it is a reviewable error for a citizenship judge to assess the residency requirement in a given case on the basis of more than one test or to proceed to a quantitative or physical presence analysis by counting absences from Canada that occurred outside the relevant assessment period.
28     However, this is not what happened in this case.
29     First, it is clear that the citizenship judge opted to assess the residency requirement on the basis of one test and one test only, which is that of physical presence developed in Pourghasemi, above. The citizenship judge's decision in this regard is transparent and intelligible. There is no mention whatsoever in his analysis of qualitative factors. Furthermore, it is clear that his quantitative assessment was limited to the four years immediately preceding the date of the applicants' citizenship applications, that is to the period of December 15, 2006 to December 15, 2010. It is worth in this regard reproducing that portion of the decision:

·       "Analysis: 

·       In deciding to whether you satisfy the residence requirement of Section 5(1)(c) of the Act, I have chosen to adopt the analytical approach used by the Honourable Mr. Justice Muldoon in Re Pourghasemi. In Pourghasemi, [1993] F.C.J. No. 232 (T.D.), Muldoon J. considered that it was necessary for a potential citizen to establish that he or she has been physically present in Canada for 1,095 days during the relevant four-year period. 

·       "It is clear that the purpose of paragraph 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized". This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples -- in a word wherever one can meet and converse with Canadian -- during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook. If the criterion be applied to some citizenship candidates, it ought to apply to all.

·       ...

·       So those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadian by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves. It is not something we can do while abroad, for Canadian life and society exist only in Canada and nowhere else." 

·       After carefully reviewing all the documentary and oral evidence presented by you at the hearing, I am not satisfied that you meet the residence requirement of the Citizenship Act. Unfortunately, the length of time you have been absent from Canada during the period under review is substantial. In the four years previous to the date of your application, you were present in Canada only 865 days, and you were absent 595 days. You are short a significant 230 days of the minimum 1,095 days required by Section 5(1)(c) of the Citizenship Act. The time you have spent in Canada is insufficient to demonstrate that you fulfil the intent of Act. 

·       I have no doubt you might eventually become an excellent Canadian citizen. I regret, however, I cannot approve your application for citizenship. When you meet the residence requirement of the Citizenship Act, I invite you to consider re-applying." 
30     The present case is distinct from the two main cases relied upon by the applicants, Chowdhury, above, and Cheung v Canada (Minister of Citizenship and Immigration) 2012 FC 348, [2012] F.C.J. No 428 (QL). Indeed, in both cases, the citizenship judges failed to clearly state the residency test they were applying while there were mentions of both quantitative and qualitative factors in the actual analysis. Here, not only was the test used by the citizenship judge clearly stated but the applicants also admit, at paragraph 22 of their written submissions, that the citizenship judge did not take into account any qualitative factors and did not, as a result, proceed to an assessment of their ties and connections with Canada.
31     What is clear also from the impugned decision is that the citizenship judge, contrary to the applicants' assertions, did not consider dates outside the relevant residency assessment period for the purposes of establishing whether the applicants had met the physical presence test.
32     The judge did provide, in describing the evidence that was before him, a summary of the husband's employment history, which was the main reason why the applicants were in and out of the country on a certain number of occasions from the date they landed in Canada in April 2006 to the husband's transfer to Spain in March 2011. However, there is no indication whatsoever that the citizenship judge counted absences outside the relevant residency assessment period in order to conclude as he did on the applicants' failure to meet the residency quantitative test. It is not an error for citizenship judges to refer to dates outside relevant residency assessment period, provided they do not actually count them in their quantitative analysis (Sotade v Canada (Minister of Citizenship and Immigration) 2011 FC 301 at para 15, [2011] F.C.J. No 383 (QL)).
33     Likewise, the case of Raad, above, is of no assistance to the applicants in this regard. In that case, the citizenship judge had actually counted absences outside the relevant residency period and had, on top of that, inaccurately assessed the number and length of these absences. This is not the case here. The same can be said of Shakoor v Canada (Minister of Citizenship and Immigration) 2005 FC 776, [2006] F.C.J. No 972 (QL), where it was unclear whether the citizenship judge in that case had taken into account evidence of absences outside the relevant residency assessment period. Again, this is not the case here.
34     Finally, the applicants' argument that the citizenship judge failed to consider qualitative factors is without merit. This contention is based on the fact that the applicants were required by a citizenship officer to fill a Residence Questionnaire. This was done one year prior to their interview before the citizenship judge. This questionnaire is a standardized document that is routinely sent to citizenship applicants who do not appear to have accumulated the minimum number of days of physical presence in Canada.
35     This is entirely consistent with the way the processing of applications for Canadian citizenship is set up in the Act and the Citizenship Regulations, SOR/93-246. It is the Minister, through citizenship officers, who gathers the information citizenship applicants have the onus of providing and causes to be commenced the inquiries necessary to determine whether they meet the requirements of the Act (Citizenship Regulations, above section 11). Section 17 of the Act even empowers the Minister to suspend the processing of a citizenship application where he is of the opinion that there is insufficient information to ascertain whether an applicant meets the requirements of this Act.
36     It is only when those inquiries are completed that a citizenship application and the materials in support of it is referred to a citizenship judge for consideration (Citizenship Regulations, above at subsection 11(5)).
37     Consistent with that regulatory process, the Residence Questionnaire was sent to the applicants in this case way before the matter was referred to the citizenship judge. Although this questionnaire sought some information of a qualitative nature, this is not indicative, and cannot be indicative, of how and on what basis the citizenship judge was to assess the residency requirement. This was the first of a two-step process leading to the referral of the applicants' file to the citizenship judge. Also, no legitimate expectations that the applicants' applications would be reviewed by way of a qualitative test could reasonably flow from this process (Canadian Union of Public Employees (CUPE) v Ontario (Minister of Labour), 2003 SCC 29 at para 131, [2003] 1 SCR 539; Donohue, above at paras 31 and 32).
38     The information gathering process which precedes the referral of a citizenship application to a citizenship judge for consideration cannot have a binding effect on the way the application is to be decided. Once seized of the matter, it is up to the citizenship judge to opt for the test he wishes to apply and to require from the applicant further evidence, if he or she feels there is a need for it.
39     In the present case, the citizenship judge was therefore under no obligation to conduct an analysis of the applicants' residency situation by way of a qualitative test. There was no reviewable error on his part by not doing so.
40     The same can be said of the notes taken by the citizenship judge. There was nothing wrong for the judge in providing in his notes an overview of the status of various aspects of the applicants' application (Zheng v Canada (Minister of Citizenship and Immigration) 2007 FC 1311 at para 11, [2007] F.C.J. No 1686 (QL)). This did not change the fact that he clearly and transparently opted to dispose of the applicants' applications on the basis of the physical presence test.
41     The two appeals are therefore dismissed. Since the respondent did not seek costs, none will be awarded.
42     These reasons will be filed in Court file number T-1651-13 and a copy placed in Court file number T-1652-13.
JUDGMENT
THIS COURT'S JUDGMENT is that the appeals in these two cases are dismissed, without costs.

LeBLANC J.

Tuesday, January 13, 2015

SERGIO R. KARAS QUOTED IN TODAY'S NATIONAL POST STORY ABOUT AUTISTIC CHILD

I wa quoted in today's National Post front page story on medical inadmissibility, concerning the case of an autistic child who would require public expenditures. The child's parents application for permanent residence was rejected due to the child's condition.

http://news.nationalpost.com/2015/01/12/judge-upholds-decision-denying-entry-to-south-african-doctor-because-her-autistic-child-would-cost-taxpayers-too-much/

January 12, 2015

South African doctor's immigration bid rejected because her autistic child would cost taxpayers too much

By Tom Blackwell 

Of the one million or so permanent-resident applications filed every year, 0.2% - or about 20,000 - are rejected as medically inadmissible

A judge has upheld an immigration officer's decision to deny entry to a South African doctor because her autistic child would cost taxpayers too much money, highlighting a little-known law that puts a pricetag on the medical conditions of would-be new Canadians.
Thousands of potential immigrants are rejected every year because of the rule, and numerous appeals - involving people with everything from HIV to arthritis - have reached the courts.
At the heart of the cases is a 13-year-old section of the Immigration and Refugee Protection Act that deems people "medically inadmissible" if their condition would trigger excessive medical or social costs here.
"It continues to impact real people, often in surprising cases," the author of medicallyinadmissible.com, a blog critical of the policy, wrote recently. The anonymous U.S. citizen, who describes himself as HIV-positive, says the legislation should be rescinded.
"Maybe because it violates the various UN agreements to which Canada is signatory, or because it violates the Charter rights," he charges. "Whatever the reason, it will be nice to see the morally repugnant scheme struck down."
One leading Canadian immigration lawyer, however, says the law serves an important purpose.
"The act wisely provides a mechanism to ensure aspiring immigrants don't unduly burden the system, because that wouldn't be fair," said Sergio Karas, a Toronto-based lawyer. "The system is already over-taxed. All you need to do is walk into any emergency room and you see what the problem is. There are people in the corridors for hours on end."
Of the one million or so permanent-resident applications filed every year, 0.2% - or about 20,000 - are rejected as medically inadmissible, Bill Brown, a Citizenship and Immigration Canada spokesman, said.
While those cases include people judged a threat to public health or safety, most stem from the excessive-cost question, said Mario Bellissimo, a Toronto immigration lawyer.
In the latest case, Asmeeta Burra, a physician in South Africa, and her architect husband had applied to be permanent residents under the skilled-worker category, planning to settle in British Columbia.
The fact her son is autistic triggered a medical assessment, which concluded that the cost of special education for the boy would total about $16,000 a year. That well exceeds the annually adjusted average social and medical cost for Canadians, currently about $6,300.
The couple responded that they would cover the cost of any special assistance their son would need, and noted that in South Africa he goes to a mainstream school, and requires only sporadic help from a private agency.
Applicants are allowed to submit a plan to mitigate such costs. Immigration officials rejected Dr. Burra's submission, though, saying there was no proof of the couple's likely income and that, regardless, the services their son would need are provided by publicly funded institutions.
She asked the Federal Court to overturn that decision, but in a recent ruling, Justice Cecil Strickland upheld the Citizenship and Immigration handling of the case, saying that the plan the parents filed lacked specifics and failed to clearly counter the excessive cost issue.
Dr. Burra could not be reached for comment.
Mr. Bellissimo, her lawyer, said the case underlines a problem in this area and other parts of the immigration system. The government encourages people to make applications without legal help - as his clients did in the early stages of their case - but the requirements are often difficult for lay people to understand, he said.
Still, Mr. Bellisimo stopped short of criticizing the law itself, noting that some immigrants are successful in arguing that they can mitigate the costs of medical or social services. That is usually done by promising to pay for private treatment or education.
"I think for the most part, it strikes a fair balance," he said.
National Post

Friday, January 9, 2015

CITIZENSHIP JUDGE HAS JURISDICTION TO RETEST APPLICANT

The Federal Court affirmed its previous jurisprudence that a Citizenship Judge has the jurisdiction to re-test an applicant who previously passed the written test.

Wang v. Canada (Minister of Citizenship and Immigration)

Between
Helen Wang, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 1280
2014 FC 1187

Docket: T-754-14

 Federal Court
Vancouver, British Columbia

Rennie J.


Heard: October 27, 2014.
Judgment: December 10, 2014.
(34 paras.)



JUDGMENT AND REASONS

·       RENNIE J.:-- 
I. Nature of the Matter
1     This is an appeal pursuant to section 14 of the Citizenship Act, RSC 1985, c C-29 (Citizenship Act) of a decision from Citizenship Judge Ann D. Dillon (Citizenship Judge) refusing the applicant's application for Canadian citizenship. For the reasons that follow the appeal is dismissed.
2     The applicant is Helen Han Wang, a 44 year old citizen of China. She became a permanent resident of Canada on February 12, 2007, and subsequently applied for Canadian citizenship for her and her minor daughter on July 9, 2010.
3     On September 22, 2011 the applicant passed a written citizenship test. After completion of the test, the applicant was told to fill out a residence questionnaire. The applicant completed and returned the questionnaire to Citizenship and Immigration Canada in October, 2011. I will return to the questionnaire and its significance in the disposition of this appeal later in these reasons.
4     The applicant did not hear back regarding her application and the questionnaire until June, 2013, when she had made calls inquiring about the status of her application. Citizenship and Immigration Canada responded to the applicant's inquiry via letter, in which the applicant was told to "be advised that your file has been referred to a Citizenship Judge for a hearing to determine if you meet the residency requirements set out in the Citizenship Act". The letter also indicated that a hearing can take from 24 to 30 months to schedule, the applicant "will receive a Notice to Appear" once a hearing with a Citizenship judge is scheduled. The letter did not contain any further information regarding the purpose or content of the hearing.
5     The Notice to Appear was issued on November 7, 2013, some five months after the June, 2013 letter from Citizenship and Immigration Canada and well before the estimated 24 to 30 month timeframe. The Notice to Appear stated:

·       The Citizenship Judge needs more information to make a decision about your citizenship application and you must appear for a hearing. At this hearing, the Judge will determine whether you meet all the requirements for citizenship and you will also be asked questions to determine if you have an adequate knowledge of English or French and an adequate knowledge of Canada. [Emphasis in original] 
6     At the hearing on November 29, 2013 the Citizenship Judge advised the applicant that she would administer an oral knowledge test. The applicant requested time to study but the Citizenship Judge refused this request. The applicant again requested time to study after the test began and she realized the test was not a multiple choice test. The Citizenship Judge again refused. The applicant received a failing score of 6 out of 20. A passing mark for the knowledge test is 15 out of 20.
7     At the end of the hearing, the Citizenship Judge told the applicant she was not entitled to medical coverage and directed her to cut up her BC Care Card. The Citizenship Judge also questioned the applicant about GST/HST and child tax credits. The applicant had continued to receive the credits while she was out of Canada, contrary to the Income Tax Act (RSC, 1985, c 1 (5th Supp)).
II. The Citizenship Judge's Decision
8     The Citizenship Judge found that the applicant was physically present in Canada for at least 1,095 days during the relevant period of February 12, 2007 to July 5, 2010. As such she met the residence requirements under subsection 5(1)(c) of the Citizenship Act; however, as the applicant did not meet the requirements of subsection 5(1)(e) of the Citizenship Act she was not granted citizenship.
9     In her decision, the Citizenship Judge concluded that, based on the answers to questions posed at the hearing the applicant failed to demonstrate an adequate knowledge of Canada and of the responsibilities and privileges of citizenship pursuant to subsection 5(1)(e) of the Citizenship Act.
10     The Citizenship Judge noted that in the Notice to Appear of November 7, 2013 the applicant was advised in bold print of the possibility of a knowledge test, and that the knowledge test questions are "based on information provided in the study guide, Discover Canada: The Rights and Responsibilities of Citizenship".
11     The Citizenship Judge justified the administration of a re-test because she did not accept that the previously completed written test was a "current reliable indicator" of the applicant's knowledge of Canada. The Citizenship Judge provided two reasons for this conclusion: first, she cited the fact that the applicant had not lived in Canada since the day of her application for citizenship as cause for concern. Second, the Citizenship Judge also commented that some of the applicant's actions suggested she did not understand the responsibilities of Canadian citizenship, such as the applicant's continued collection of GST/HST and child tax benefits while not residing in Canada.
III. Issues and Standard of Review
12     This case raises three issues on appeal:

·       a. 
Whether the Citizenship Judge had jurisdiction to re-test the applicant's knowledge of Canada at the oral hearing; 

·       b. 
Whether adequate notice regarding the re-test was given to the applicant such that procedural fairness was observed; and 

·       c. 
Whether there was a section 7, section 15, or section 3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (Charter) breach in denying the applicant's citizenship application. 
13     The Citizenship Judge's determinations under section 5 of the Citizenship Act are a combination of mixed fact and law, and should be reviewed on the reasonableness standard. Issues of procedural fairness and constitutional questions are reviewed on the correctness standard.
IV. Analysis
A. The Jurisdiction of a Citizenship Judge to Re-test
14     Subsection 5(1)(e) of the Citizenship Act requires an applicant for Canadian citizenship to have an adequate knowledge of Canada:
Grant of citizenship

·       5. 
(1) The Minister shall grant citizenship to any person who 

·       [...] 

·       (e) 
has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; 
* * *
Attribution de la citoyenneté

·       5. 
(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois: 

·       [...] 

·       e) 
a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté; 
15     Subsection 14(1) provides that a citizenship application "shall be considered by a citizenship judge who shall [...] determine whether or not the person who made the application meets the requirements of this Act and the regulations". Under section 14(2), the citizenship judge shall approve or not approve the application.
16     The Citizenship Regulations, SOR/93-246 (Citizenship Regulations) state:

·       11 (7) If it appears to a citizenship judge that the approval of an application referred to the citizenship judge under subsection (5) may not be possible on the basis of the information available, that citizenship judge shall ask the Minister to send a notice in writing by mail to the applicant, at the applicant's latest known address, giving the applicant an opportunity to appear in person before that citizenship judge at the date, time and place specified in the notice. 
* * *

·       11 (7) Lorsque le juge de la citoyenneté saisi de la demande conformément au paragraphe (5) estime qu'il lui est impossible d'approuver celle-ci sans de plus amples renseignements, il demande au ministre d'envoyer un avis écrit au demandeur à sa dernière adresse connue, par courrier, l'informant qu'il a la possibilité de comparaître devant ce juge aux date, heure et lieu qui y sont précisés. 
17     Further, subsection 15(1) of the Citizenship Regulations states that a person is considered to have "an adequate knowledge of Canada if they demonstrate, based on their responses to questions prepared by the Minister, that they know the national symbols of Canada and have a general understanding of" the following subjects:

·       a. 
The chief characteristics of Canadian political and military history; 

·       b. 
The chief characteristics of Canadian social and cultural history; 

·       c. 
The chief characteristics of Canadian physical and political geography; 

·       d. 
The chief characteristics of the Canadian system of government as a constitutional monarchy; and 

·       e. 
Characteristics of Canada other than those referred to in paragraphs (a) to (d). 
18     Subsection 15(2) states that a person is considered to have "an adequate knowledge of the responsibilities and privileges of citizenship if they demonstrate, based on their responses to questions prepared by the Minister, that they have a general understanding of" the following subjects:

·       a. 
Participation in the Canadian democratic process; 

·       b. 
Participation in Canadian society, including volunteerism, respect for the environment and the protection of Canada's natural, cultural and architectural heritage; 

·       c. 
Respect for the rights, freedoms and obligations set out in the laws of Canada; and 

·       d. 
The responsibilities and privileges of citizenship other than those referred to in paragraphs (a) to (c). 
19     The applicant submits that the Citizenship Judge did not have the jurisdiction to re-test the applicant's knowledge of Canada at the oral hearing, given that the applicant had already successfully passed the written knowledge test. Specifically, it is said that this was an error because section 5 of the Citizenship Act requires the Minister to grant citizenship to any person who meets the listed requirements. Citizenship is therefore a statutory right under the Citizenship Act. Once an applicant has satisfied all the requirements, as the applicant did, he or she must be granted citizenship (section 5). To withhold citizenship in the case of an applicant who has met all the requirements is tantamount to an arbitrary decision on the part of the Citizenship Judge.
B. Conclusion on the Jurisdiction to Re-test
20     In my view, the Citizenship Judge had the jurisdiction to test the applicant's knowledge of Canada at the oral hearing. The requirements set out in subsection 5(1) of the Citizenship Act are conjunctive: they must all be satisfied in order for the Citizenship Judge to recommend a grant of citizenship to the Minister: Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 719. Further, the statutory requirements are contemporaneous. The statute does not provide that it is sufficient that at one point in time the applicant had an adequate knowledge of Canada; rather, the statute requires that the applicant has an adequate knowledge of Canada: Huang v Canada (Minister of Citizenship and Immigration), 2013 FC 576 and Santos v Canada (Minister of Citizenship and Immigration), 2008 FC 205. Thus, citizenship judges enjoy "a wide measure of discretion" to determine, pursuant to section 14(1) of the Citizenship Act, "whether or not the person who made the application meets the requirements of this Act", Santos at para 23.
21     This conclusion is also consistent with established jurisprudence. Chief Justice Paul S. Crampton in Huang held that a Citizenship Judge may test an applicant's knowledge of Canada notwithstanding that the applicant previously passed a written test: Huang at para 35. Although the Citizenship Judge may re-test an applicant, fairness requires that, "at a minimum, applicants be re-tested where there is a valid reason to do so": Santos at para 26. In this case, the Citizenship Judge had a valid reason to re-test.
22     In this case, the Citizenship Judge had more than ample reason to administer a retest. The answers to the questionnaire provided more than sufficient basis for the decision to retest. The applicant had been absent from Canada for 134 days during the relevant period, and met the residency requirement by a mere 9 days. Her husband had never lived in Canada and lost his permanent residency status in 2012. Curiously, although the citizenship test was conducted on September 22, 2011, the residency questionnaire completed by the applicant, and declared to be true, indicated that on September 17, 2011, the applicant was in Shanghai. Further, in part 11 of the questionnaire eliciting absences from Canada the reason "vacation of 321 days" was noted. This alone was sufficient to trigger a re-examination. An absence from Canada for nearly a full year is not a vacation. The Citizenship Judge concluded:

·       You have not lived in Canada since the day of your application for citizenship on July 5, 2010, more than 31/ 2 years ago, and since then you have only visited Canada for less than six weeks in total. Accordingly, a genuine concern arises that you have lost touch with Canada, its institutions, its people, its values and traditions. In order to find that you have met the knowledge requirement of the Act, I must be satisfied that you have preserved this basic understanding of Canada. 
23     The Citizenship Judge also concluded that the applicant did not understand the responsibilities of Canadian citizenship because of her collection of GST/HST credits and child tax benefits while she and her child were out of Canada for extended periods of time. In my view, no objection can be taken to the Citizenship Judge's decision to deny citizenship in these circumstances. The statutory scheme affords a wide measure of discretion to the Citizenship Judge to decide on proper information gathering procedures in order to satisfy herself that the applicant possesses the requisite knowledge and, consequently, the Citizenship Judge had sufficient reason to justify a re-test: Santos at para 23.
C. There was no Breach in Procedural Fairness as the Applicant was given Adequate Notice Regarding the Re-test
24     The applicant contends that the Notice to Appear, dated November 7, 2013, is not clear that the applicant would be re-tested on her knowledge of Canada. The applicant argues that there was a distinct difference between the notice provided prior to the written knowledge test and the notice provided prior to the oral hearing. Specifically, prior to the written test the applicant was provided with the "Discover Canada" study guide. In addition, the applicant understood that the oral hearing would focus on examining residency requirements -- not her knowledge of Canada. According to the applicant, this understanding was reasonable given that she had already successfully passed the written knowledge test.
25     The applicant submits that procedural fairness requires the Minister to give notice that is unequivocally clear, such as: "Despite your passing the written test, at the interview the Citizenship Judge will still test you on your English or French and Canadian knowledge and for that reason you should re-study the study guide: Discover Canada". The applicant also argues that re-testing an applicant who has already passed the test presents problems, such as the extent, if any, that the results of the first test should be taken into account.
26     The content of procedural fairness is variable and depends on the specific context of each case: Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at paras 21-22. The five factors to be taken into consideration when assessing the content of procedural fairness in a given situation are: (1) the nature of the decision; (2) the statutory scheme; (3) the importance of the decision to the individual affected; (4) legitimate expectations; and (5) the choice of procedures: Baker at paras 23-28.
27     In the context of the Baker criteria, together with the fact that the degree of fairness required is mitigated by the applicant's ability to submit a new application for citizenship at a future date, I turn to the notices in question:

·       NOTICE TO APPEAR -- TO WRITE A CITIZENSHIP TEST (dated 22 August 2011)

·       [...] 

·       You will have to write a test about your knowledge of Canada and of the responsibilities and privileges of citizenship. You may write the test in English or French. To prepare for the test, you should review the study guide provided to you. At the same time, you will also be expected to demonstrate a knowledge of English or French. 

·       and 

·       NOTICE TO APPEAR -- HEARING WITH A CITIZENSHIP JUDGE (dated 7 November 2013)

·       [...] 

·       The Citizenship Judge needs more information to make a decision about your citizenship application and you must appear for a hearing. At this hearing, the Judge will determine whether you meet all the requirements for citizenship and you will also be asked questions to determine if you have an adequate knowledge of English or French and an adequate knowledge of Canada. [Emphasis in original] 
28     Although the language of the second Notice to Appear is less exhaustive than the first, it is not vague. There is no uncertainty as to what the applicant might face -- that is, it is clearly stated that at the hearing the applicant "will also be asked questions to determine if you have [...] an adequate knowledge of Canada". At the very least, this notice is sufficient to trigger the applicant's due diligence to contact Citizenship and Immigration Canada to inquire about what types of questions may be asked, or how those questions would be asked. The applicant did not engage in such an inquiry.
29     Finally, this Court has affirmed that this type of Notice to Appear properly informs applicants of the potential to be subjected to re-testing by a citizenship judge. In a very thorough analysis of the interplay between the requirements of procedural fairness and citizenship hearings, Justice Simon Noël held that the very similar language of "the judge will ask you questions in order to determine whether you have [...] adequate knowledge of Canada" in a Notice to Appear constitutes proper notice(Al Koury v Canada (Citizenship and Immigration), 2012 FC 536). Similarly, the Chief Justice's decision in Huang confirms that this type of Notice to Appear does not breach an applicant's procedural fairness rights. The Citizenship Judge's decision to re-test the applicant's knowledge of Canada did not breach the duty of procedural fairness.
D. Sections 7, 15 and 3 of the Charter are not Engaged in this Case
30     The applicant advanced three Charter arguments; however, I conclude that neither section 7, 15, nor 3, are engaged in this case.
31     Section 7 is primarily, but not exclusively, concerned with the rights of individuals in the criminal justice context, including rights on search, seizure, detention, arrest, trial and imprisonment. No principle of fundamental justice has been identified here that can be said to have been breached. The ability to immigrate and obtain citizenship is not among the fundamental choices relating to personal autonomy which would engage section 7. The interests of the applicant in obtaining citizenship are far removed from those considered in the jurisprudence with respect to section 7; Tabingo v Canada (Minister of Citizenship and Immigration), 2013 FC 377 affd, Shahid v Canada (Citizenship and Immigration), 2014 FCA 191.
32     The applicant argues that section 15 is engaged because she is discriminated against as a woman in Canada seeking citizenship while her husband remains in China. This argument fails at the threshold requirement that the Charter applies to government action: RWDSU v Dolphin Delivery Ltd., [1986] 2 SCR 573. The applicant's argument revolves around the applicant's own decision to pursue citizenship in Canada. This was a private family choice, outside the scope of government action.
33     Finally, section 3 of the Charter only applies to "every citizen of Canada". As the applicant has not yet obtained citizenship, this provision of the Charter does not apply to her. Specifically, section 3 states:

·       3. 
Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. 
* * *

·       3. 
Tout citoyen canadien a le droit de vote et est éligible aux élections législatives fédérales ou provinciales. 
34     The language of the provision is clear: only citizens have the right to vote. The applicant is not a citizen, and therefore this right does not apply to her; Lavoie v Canada, [2000] 1 FCR 3 at para 41 (CA).
JUDGMENT

·       THIS COURT'S JUDGMENT is that the appeal is dismissed with costs. 

RENNIE J.
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