Thursday, September 4, 2014

COURT RULES NEW BRUNSWICK PNP SELECTION PROCESS FAIR

This is a  rare case of litigation in the PNP program.  the court ruled that the selection process was fair as it involved a policy decision.

Rihawi v. New Brunswick (Minister of Post
Secondary Education, Training, and
Labour)


Between
Mazen Rihawi, Applicant, and
The Province of New Brunswick, as represented
by the Minister of Post
Secondary Education, Training, and Labour, Defendant
[2014] N.B.J. No. 223
2014 NBQB 199

Court File No. F/M/20/14

 New Brunswick Court of Queen's Bench
Trial Division - Judicial District of Fredericton

P.C. Garnett J.


Heard: June 26, 2014.
Judgment: August 26, 2014.
(30 paras.)


1     P.C. GARNETT J.:-- This is an application for Judicial Review under Rule 69 of the Rules of Court. The applicant, Mazen Rihawi, (Rihawi) asks the Court to quash a decision of the Province of New Brunswick (the Province) to refuse his application for a Provincial Nominee Certificate and to order the Province to "reinstate the processing" of his application. The Respondent, The Province of New Brunswick, as represented by the Minister of Post Secondary Education and Labour, (the Province) opposes the application.
Background
2     The Immigration and Refugee Protection Act, S.C. 2001, c.27, permits the Government of Canada to enter agreements with the Provinces with respect to the selection of immigrants. The Province has entered such an agreement regarding economic immigrants. Under the agreement the Province is permitted to "nominate" 625 applicants per year. The Province invites applications from people across the world and the successful applicants are given a Provincial Nominee Certificate. The Province does not have authority to grant immigrant status to the applicant. In effect, the Provincial Nominee Certificate is only a recommendation to the Government of Canada.
3     In October 2012, Mr. Rihawi requested an exploratory business trip to New Brunswick, which is the first step in the process. A visa was issued and Mr. Rihawi visited New Brunswick between August 19, 2013 and August 24, 2013. He was interviewed by officials with the Province on August 26, 2013. Following the interview, it was recommended that Mr. Rihawi's application be refused. On October 2, 2013, a letter was sent informing him that his application had been refused. At the request of his lawyer, Mr. Rihawai's application was re-examined in January 2014 and the decision to refuse the application was confirmed. Mr. Rihawi asks the Court to quash the decision.
Evidence
4     In his affidavit, Mr. Rihawi says that he is a citizen of Syria but lives and works in Kuwait. He wishes to relocate to Canada and by using the website of the New Brunswick Provincial Nominee Program; he completed the Request for Business Trip. His request was granted and he came to New Brunswick as outlined above. He says that during the interview "the officer indicated to me that if they needed more supporting documents in management experience, they would ask me later. Nobody from NBPNP has inquired of me since the interview date." He says also that he did not receive the October 2, 2013 letter refusing his application. In December 2013, he engaged a New Brunswick lawyer who provided him with a copy of the October 2 letter.
5     He says he is an experienced architect who has held senior management positions for over 20 years. He says he "would have explained in detail my various duties' if had been asked. He says he has spent over $15,000 to pursue the application and expected that it would be processed fairly. He says he is "dumfounded and bewildered" by the decision.
6     Ashraf Ghanem (Ghanem) is a Director in the Department of Post Secondary Education, Training and Labour in the Immigration Branch. He swore an affidavit on behalf of the Province. In it, he explained the Provincial Nominee Program. He explains that under the Canada -- New Brunswick Agreement, the role of his department is "to facilitate the immigration process by providing Certificates of Nomination to prospective immigrants known as Business Applicants." He states that the Province does not have the authority to issue a permanent residence visa but must submit the application to the government of Canada which makes the final decision. In 2010, the N.B. program was capped by the federal government at 625 nominations per year. In 2013, there were so many applications to the program the Province stopped accepting applications on September 3, 2013.
7     He says Mr. Rihawi was one of the Business Applicants to the program. He provides a copy of the Guide for Business Applicants which outlines the procedure to be followed by people who wish to apply to the program. Since Business Applicants "must establish a business in New Brunswick", the applicant is required to make a business trip to New Brunswick for a minimum of 5 days and take part in an interview with an official of the Department at the end of the business trip. In the first paragraph of the Guide (Exhibit C to Ghanem affidavit) the following:

·       As an economic program, the NBPNP selects, and nominates, qualified business people from around the world who will own and actively manage a business that contributes to the New Brunswick economy and may create jobs. 
In paragraph two:

·       You should also be aware that meeting the eligibility requirements does not guarantee nomination. Priority will be given to applicants who have the greatest potential to become economically established in New Brunswick. 
8     He states, Mr. Rihawi did request and complete a business trip to New Brunswick and was interviewed. He outlines all the steps taken by the Province to facilitate the trip. (Paragraphs 19-24)
9     The interview, which occurred on August 26, 2013, was conducted by Angela Willis and Fatima Vayani was present as a "scribing officer". Attached as Exhibit H is the Interview Evaluation form.
10     Mr. Ghanem states that the interviewing and scribing officers "review the interview notes, allocate points for language and knowledge of the business environment...and determine whether or not the applicant will be invited to submit a complete application..." (Paragraph 29.) At page 2 of Exhibit E, Ms. Willis recommended that Mr. Rihawi "Be refused" and at Exhibit I she provided reasons. She stated:

·       I am not convinced of Mr. Rihawi's business experience. The only proof of management experience...is a letter from the Acting General Manager...claiming Mr. Rihawi is a Technical Manager. The letter also says 'This certificate has been issued to him upon his request with no responsibility on our part'...I asked him to explain his role in the company. He said he hires people...when I asked him for more information about his management duties he only talked about hiring people for construction projects. I...explained that he would need more than that to prove his management experience. He replied by asking what we wanted to see... 
11     Mr. Ghamen then explained that the recommendations are "placed in the file in the queue to be reviewed by Management for the final decision" (paragraph 34). On October 2, 2013, a letter of refusal was sent to Mr. Rihawi at the address provided by him. (Exhibit J)
12     In December 2013, a New Brunswick lawyer contacted the Province on Mr. Rihawi's behalf and on January 14, 2014, the lawyer provided the Province with "supporting documentation." The documents were copies of those already provided. (Paragraph 43) On January 22, 2014, Ms. Willis wrote to the lawyer and informed him that Mr. Rihawi's preliminary application had been re-examined and "our decision to refuse still stands" (Exhibit P)
Standard of Review
13     In the Notice of Application, Mr. Rihawi states:

·       The Applicant shall argue that the Respondent breached the common law duty of fairness, and/or in the alternatively its decision was unreasonable in that: 

·       (a) 
The Respondent did not allow the Applicant to respond to its concerns that "the Applicant's work experience/responsibilities did not include financial decisions, sales and marketing decisions or operational decisions"; 

·       (b) 
The Respondent unreasonably decided the Applicant's managerial work experience, which included among other tasks, managing 80 employees, supervising the construction of a 25 floor hotel project, would not include financial decisions, sales and marketing decisions or operational decisions. 
14     He submits that the Province "breached the common law duty of fairness" and that it was unreasonable. As I have stated before, the role of a Court in assessing whether a decision is reasonable is different from the role when assessing whether the process has been fair. In the former, the Judge examines the record or the reasons given by the tribunal or Government official and asks whether they are justified, transparent and intelligible (Dunsmuir v. New Brunswick, [2008] 1 S.C.R.) In the second, the Court examines the process followed by the Government body and asks whether it was fair. In this case, Rihawi has submitted that the Province has been both unfair and unreasonable.
The Duty to be Fair
15     Where the issue before the Court relates to procedural fairness, it is unnecessary to determine a standard of review. See Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249 at paragraph 74 and C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539.
16     When the question relates to procedural fairness, the issues are; did the particular Respondent have a duty to be fair and, if so, did it fulfill the duty?
17     In Principles of Administrative Law by Jones and de Villars, (fifth edition) the authors state at page 255:

·       Thus, the duty to be fair has evolved so that it now applies to every public authority making an administrative decision which affects the rights, privileges or interests of an individual... 
18     In this case, the decision did affect the interests of Mr. Rihawi. I therefore find that the Province did have a duty to be fair. I will examine the issue of whether the Province fulfilled that duty below.
Was the decision reasonable?
19     The Parties and I agree that the standard of review with respect to the decision is reasonableness.
Analysis
20     The concept of fairness is flexible and variable. In Baker v. Canada (Ministry of Citizenship and Immigration), [1999] 2 S.C.R. 817, Madame Justice L'Heureux-Dubé enunciated some of the relevant factors to be considered in determining the content of the duty of fairness. These factors were summarized in Jones and de Villars, at pages 256 and 257, as follows:

·       1. 
The nature of the decision being made and the process followed in making it. The closer the administrative process is to judicial decision-making, the more likely it is that procedural protections closer to the trial model will be required. 

·       2. 
The nature of the statutory scheme and the terms of the statute pursuant to which the body operates. The role of the decision in the statutory scheme helps determine the content of the duty of fairness. Greater procedural protections are required when there is no appeal procedure or the decision determines the issue and further requests cannot be submitted. 

·       3. 
The importance of the decision to the individual or individuals affected. The more important or the great impact the decision has, the more stringent are the procedural protections. This is a significant factor. The court commented: 

·       The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections will be mandated. 

·       4. 
The legitimate expectations of the person challenging the decision. The doctrine of legitimate expectations is part of the doctrine of procedural fairness. If a claimant has a legitimate expectation that a certain procedure will be followed, the duty of fairness requires this procedure to be followed. If a claimant has a legitimate expectation that a certain result will be reached, fairness may require more extensive procedural rights than might otherwise be accorded. The doctrine of legitimate expectations does not create substantive rights outside the procedural domain. The "circumstances" affecting procedural fairness take into account the promises or regular practices of the administrative decision-makers to act contrary to their representations as to procedure or to go back on substantive promises without giving the person affected significant procedural rights. 

·       5. 
The choices of procedure made by the agency itself, particularly if procedure is a matter of discretion or if the agency possesses expertise in determining appropriate procedures. Important weight must be given to the choice of procedures made by the agency and its institutional restraints. 
21     In this case, the Province was deciding whether to make a recommendation to the Government of Canada that Mr. Rihawi be granted immigrant status.
22     It is important to note that the Government of Canada is not obliged to accept the recommendation. Having said that, the recommendation was important to Mr. Rihawi.
Was the process fair?
23     As stated above, the process is the result of an agreement between the Government of Canada and the Province. Under the agreement, the Province is permitted to issue up to 625 Provincial Nominee Certificates a year. Also, as stated above, the Province has no authority to determine status. The Province does have the authority and responsibility "to establish their own criteria for nomination" (OP 7-B-Exhibit B Ghanem affidavit, Section 7.2.) The criteria established by the Province are outlined in the Guide for Business Applicants (Ghanem affidavit, Exhibit C.). These guidelines are available to potential applicants on its website and were used by Mr. Rihawi to request a trip to New Brunswick. After at least a five day visit, the applicant is interviewed and the interviewers make a recommendation which is then reviewed by "management" and a decision is made. All of these steps were followed in this case. The interviewer determined that there was insufficient proof of management experience. Mr. Rihawi says he could have provided more, however, when his lawyer forwarded documents in January 2013, no new documents were provided.
24     The overriding objective of the program is to benefit the economy of New Brunswick. (Section 5.1 of the Canada New Brunswick Agreement on Provincial Nominees, Ghanem affidavit Exhibit A) Applicants are informed that "meeting the eligibility requirement does not guarantee nomination" (see paragraph seven above.) In addition, it is clear that the Province receives many applications. In short, there is competition for the 625 certificates.
25     In Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 71, the Supreme Court of Canada stated; "The most fundamental principles of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country." In this case, Mr. Rihawi decided to apply to the program and he was given the opportunity to visit and be interviewed. The people who interviewed him made a recommendation and gave reasons for it. Mr. Rihawi knew in advance that the Province was looking for candidates with relevant business experience.
26     The interviewer was performing a policy-making discretionary function. She followed the procedure and made a recommendation which was accepted by her supervisors. There is no evidence (or allegation) of bias or bad faith.
27     I find that the process was fair. More particularly:

·          Mr. Rihawi had all the relevant information well in advance of his visit to New Brunswick; 

·       * 
Mr. Rihawi knew that even if he did qualify, he would not necessarily be recommended; 

·       * 
If, as he submits, he could have provided more relevant information, it could have and should have been done at the beginning of the process; 

·       * 
Mr. Rihawi was given an opportunity to provide more information in January 2013 and he failed to do so; 

·       * 
The Province followed the procedure which was mandated. 
Standard of Review
28     As stated above, the standard of review is reasonableness. Before Dunsmuir supra a Minister's discretionary decision was reviewed against the standard of patent unreasonableness (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3.) Since Dunsmuir, the standard is reasonableness. A Court reviewing a decision of this kind must exercise a high degree of deference. The decision makers are applying Government policy in making their selections. In addition, in this particular situation, they are aware of the qualifications of the competing applicants.
29     The Court has a copy of the application and the reasons given for its rejection. As stated by the Province, there is very little evidence (as opposed to assertions) of management experience. The application was rejected on that basis.
30     I find that the record and the decision meet the test of reasonableness. The application for Judicial Review is therefore dismissed with costs of $1,000.00.

P.C. GARNETT J.

Wednesday, September 3, 2014

CANADIAN EXPERIENCE CLASS APPLICANT NOT PROPERLY ASSESSED

The officer in the case below misconstrued the employer letter and emphasized the areas that were not supervisory. The court rejected that assessment and the applicant was granted a second chance.

Gao v. Canada (Minister of Citizenship and Immigration)

Between
Cijia Gao, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 850
2014 FC 821

Docket: IMM-3457-13

 Federal Court
Calgary, Alberta

Rennie J.


Heard: July 8, 2014.
Judgment: August 25, 2014.
(10 paras.)


JUDGMENT AND REASONS
1     RENNIE J.:-- The applicant seeks to set aside the April 25, 2013 decision of a visa officer refusing the applicant's application for permanent residency as a member of the Canadian Experience Class of skilled workers. The applicant had applied under the Canadian Experience Class under National Occupation Classification (NOC) 6211 as a Retail Sales Supervisor and had been offered a position at Safeway Ltd.
2     After reviewing the evidence, the visa officer made the following relevant findings:

·       1. 
The applicant had not supervised and co-ordinated sales staff and cashiers or assigned sales workers to duties. 

·       2. 
The applicant provided a letter from his employer, describing the applicant's job duties. The officer noted that three of the five job duties described use the verbs "helping," "assisting" and "aiding" in describing the applicant's responsibilities. 
3     In the decision letter, the officer concluded that the applicant did not provide evidence that he performed a substantial number of the main duties of a retail sales supervisor under NOC 6211, nor evidence that he performed the essential duties of the position. As such, the officer was not satisfied that the applicant met the statutory requirements to be granted permanent residence under the Canadian Experience Class and refused the application.
4     The case before me is identical in substance to that of Benoit v Canada (Citizenship and Immigration), 2013 FC 185. In that decision Justice Russel Zinn wrote:

·       Paragraph 87.1(2)(c) of the Regulations required that Ms. Benoit "[have] performed a substantial number of the main duties [...] including all of the essential duties" listed in the NOC under which she listed her experience. In NOC 6211, under which she applied, there are no "essential" duties, only "main" duties. Accordingly, Ms. Benoit was required to have performed a "substantial number" of these main duties... 
5     The officer in this case was required to determine if the applicant "performed a substantial number of the main duties." As noted however, the April 25, 2013 decision letter states that the officer was not satisfied that the applicant had "performed a substantial number of the main duties of Retail Trade Supervisors as set out in the occupational description of the National Occupational Classification, including all of the essential duties."
6     NOC 6211 does not list any essential duties. It is, therefore, unclear, against what standard the officer assessed the application.
7     The respondent points to the Computer Assisted Immigration Processing System (CAIPS) notes, which make no reference to essential duties, but only to "a substantial number of the job duties", and urges that the Court overlook the error in the decision letter on the authority of Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para 12. In my view, there is a substantive difference in resorting to the record to complete, or, in the language of the Supreme Court of Canada, to supplement an otherwise deficient decision, and resorting to the record to override or negate patent error on the face of the decision in respect of a critical element. In Komolafe v Canada (Citizenship and Immigration), 2013 FC 431, at paragraph 11, I wrote:

·       Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking. This is particularly so where the reasons are silent on a critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made. This is to turn the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn. Here, there were no dots on the page. 
8     In note that in Benoit, Justice Zinn resisted a similar argument urging an expansive application of the Newfoundland Nurses decision:

·       In my view, no amount of "supplement[ing]," to quote Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 12, salvages the officer's decision. The Regulations clearly require that only a "substantial" number of the duties be performed. That is the test. The officer in this case singles out only parts of two of the eight main duties from NOC 6211 and on that basis concluded that Ms. Benoit's experience at the Granite did not qualify. 
9     The decision also cannot stand for a second reason. NOC 6211 requires that "some or all" of the duties be met. The decision letter focuses on the fact that employer's letter described the applicant as "helping," "assisting" and "aiding". From that, the officer concluded that the applicant did not perform three of the duties. Without greater context, evidence or information before the officer, it was unreasonable for the officer to conclude that performing a function in concert with, or parallel to others, such as is common in a team-based work environment, means that the person did not perform the function or duty.
10     In sum, this case is on all fours with Benoit, where the officer singled out two parts of the eight duties and on that basis concluded that Ms. Benoit did not qualify. Here, the officer unreasonably excluded evidence of three of the eight duties, and, on the face of the decision erroneously considered some of them to be essential.
JUDGMENT
THIS COURT'S JUDGMENT is that the application is granted and the matter is remitted for reconsideration by a different immigration officer. There is no question for certification.
RENNIE J.

Tuesday, August 12, 2014

COURT NOT PERSUADED BY APPLICANT'S EXCUSE OVER WIFE HOSPITALIZED

The Federal Court was not persuaded by an applicant's argument that he couldn't concentrate at the citizenship hearing because his wife had spent two days in the hospital.


Al-Kaisi v. Canada (Minister of Citizenship and Immigration)

Between
Ali Al-Kaisi, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 806

2014 FC 724

Docket: T-2021-13

 Federal Court
Toronto, Ontario

Shore J.


Heard: July 2, 2014.
Judgment: July 22, 2014.

(28 paras.)




JUDGMENT AND REASONS

SHORE J.:--

I. Overview

1     The bestowal of citizenship from a country where one was not born is a privilege, not a right. The citizens of Canada, through their legislative branch of government, have established minimum requirements that one must meet if the privilege of citizenship and the rights which ensue are to be bestowed. An ability to communicate with other citizens and to have a basic fundamental knowledge of the history, political structure, and characteristics of Canada are amongst the reasonable requirements by which to be granted the privilege of citizenship (Shah v Canada (Minister of Citizenship and Immigration), 2012 FC 852).

II. Introduction

2     This is an appeal, pursuant to subsection 14(5) of the Citizenship Act, RSC 1985, c C-29 and section 21 of the Federal Courts Act, RSC 1985, c F-7, brought on behalf of the Applicant, from a decision of a Citizenship Judge, dated October 25, 2013, in which his application for Canadian citizenship was denied according to paragraph 5(1)(d) and (e) of the Citizenship Act.

III. Background

3     The Applicant, Mr. Ali Al-Kaisi, is a citizen of Iraq. In 2007, he and his wife and their children applied for refugee protection. They were granted refugee status by the Canadian Embassy in Syria approximately 12-18 months later.

4     The Applicant and his family arrived in Canada on October 20, 2008, and applied for Canadian citizenship exactly three years later, on October 20, 2011.

5     On October 9, 2013, the Applicant attended a hearing before the Citizenship Judge, and on October 25, 2013, the Citizenship Judge issued his decision in which he did not approve the Applicant's citizenship application on the basis that the Applicant failed to meet the requirements of paragraph 5(1)(d) and (e) of the Citizenship Act.

IV. Decision under Review

6     The Citizenship Judge found that the Applicant did not meet the requirements of paragraph 5(1)(d) of the Citizenship Act as he did not have an adequate knowledge of either French or English. The Citizenship Judge noted that the Applicant was unable to provide answers to simple questions and did not demonstrate an adequate vocabulary for basic everyday communication.

7     The Citizenship Judge also found that the Applicant did not meet the requirements of paragraph 5(1)(e) of the Citizenship Act as he did not have an adequate knowledge of Canada. The Citizenship Judge indicated that the Applicant was unable to correctly answer questions related to one or more of the subjects outlined in the Citizenship Regulations, SOR/93-246 in his assessment of his knowledge of Canada.

8     Finally, the Citizenship Judge declined to recommend a favourable exercise of discretion on the basis of compassionate grounds pursuant to subsection 5(3) of the Citizenship Act, or as a case of special or unusual hardship or to reward services of exceptional value to Canada pursuant to subsection 5(4), as the Applicant did not present any evidence of special circumstances that would justify making such a recommendation.

V. Issues

9     The following issues are to be decided by this Court:


·        1) 

Did the Citizenship Judge breach the duty of fairness owed to the Applicant by failing to adjourn the hearing? 


·        2) 

Did the Citizenship Judge err by providing insufficient reasons on the Applicant's failure to meet the knowledge requirement? 


·        3) 

Did the Citizenship Judge err by failing to consider evidence and exercise his discretion to recommend a waiver of the language and knowledge requirements? 

VI. Relevant Legislative Provisions

10     Paragraphs 5(1)(d) and (e) of the Citizenship Act are relevant in this matter:

Grant of citizenship


·        5. 

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

...


·        (d) has an adequate knowledge of one of the official languages of Canada; 


·        (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: 

[...]


·        d) a une connaissance suffisante de l'une des langues officielles du Canada; 


·        e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté; 

VII. Standard of Review

11     The first question raised by the Applicant is a question of law and is reviewable on a standard of correctness (Elfar v Canada (Minister of Citizenship and Immigration), 2012 FC 51).

12     The second and third questions raised are reviewable on the standard of reasonableness (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708; Desai v Canada (Minister of Citizenship and Immigration), 2013 FC 194).

VIII. Analysis


·        A. 

Did the Citizenship Judge breach the duty of fairness owed to the Applicant by failing to adjourn the hearing?

13     The Applicant primarily attacks the Citizenship Judge's decision for breach of procedural fairness by arguing that he proceeded with an oral examination despite having been informed of a problem with the Applicant's mental state. The Applicant argues that he informed the Citizenship Judge that he was having difficulty focusing on the questions due to fatigue from his wife having been in the hospital two days prior to the hearing.

14     Counsel for the Respondent objects to this argument on the basis that there is no evidence on the record that the Applicant informed the Citizenship Judge of this issue. The Respondent submits that this is a new issue raised by the Applicant in an attempt to contest the results of his oral examination.

15     The Court also approaches this allegation with some scepticism. There is no evidence on the record to suggest that the Applicant informed the Citizenship Judge of a weakened mental state during the hearing or that he requested an adjournment. As pointed out by the Respondent, the record does not even contain the medical report that the Applicant claims he submitted to the Citizenship Judge during the hearing to corroborate his wife's hospitalization (Applicant's Application Record [AR] at p 24). The Court finds it difficult to believe that this key piece of evidence would be excluded from the Certified Tribunal Record if it had in fact been provided to the Citizenship Judge.

16     The Court also notes that the record contains a letter drafted by the Canadian Center for Victims of Torture, which was not before the Citizenship Judge (AR at p 22). In fact, it was drafted post-hearing.

17     Given these irregularities, the Court finds it improbable that the Applicant's mental state was in fact brought before the Citizenship Judge. It would appear that the Applicant has added additional documentary evidence to the record to support his application.

18     Without adequate and reliable evidence on the record to substantiate the Applicant's claim on this issue, the Court does not find that its intervention is justified.


·        B. 

Did the Citizenship Judge err by providing insufficient reasons on the Applicant's failure to meet the knowledge requirement?

19     In his submissions, the Applicant also submits that the Citizenship Judge was obligated to explain why he failed to meet the knowledge criteria of the Citizenship Act. The Applicant argues that the Citizenship Judge's failure to explain which sections of the test he failed makes it difficult for him to understand why he failed it and prevents the Court from discharging its appellate function.

20     The Court does agree with the Applicant that the Citizenship Judge's reasons related to the knowledge requirement are inadequate. They effectively list the general criteria outlined in the Citizenship Regulations, without any further analysis; however, the Court is nonetheless of the view that its intervention is unwarranted.

21     The Citizenship Judge's decision, when read as a whole, is still well within the range of acceptable outcomes. As recently held by the Supreme Court of Canada in Newfoundland and Labrador Nurses' Union, above, the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, "the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible, acceptable outcomes" (at para 14).

22     In this case, the Court finds that it does. In addition to his finding regarding the Applicant's knowledge of Canada, the Citizenship Judge found that the Applicant had not met the language requirements in order to be granted citizenship. The Citizenship Judge noted that the Applicant was unable to answer even simple questions on familiar topics "using a variety of short sentences with connecting words" and "demonstrate an adequate vocabulary for basic everyday communication" The Court finds that this determination was sufficient, in and of itself, to deny the Applicant's application for Canadian citizenship. Therefore, the Citizenship Judge was not required to undertake an analysis of the results obtained by the Applicant on the knowledge portion of the test. The Citizenship Judge's finding regarding the Applicant's language proficiency was dispositive of the application.


·        C. 

Did the Citizenship Judge err by failing to consider evidence and exercise his discretion to recommend a waiver of the language and knowledge requirements?

23     The Applicant submits that the Citizenship Judge erred by failing to consider the evidence of his wife's hospitalization in considering whether to exercise his discretion pursuant to subsections 5(3) and 5(4) of the Citizenship Act. The Applicant argues that his wife's hospitalization impeded him from performing at the hearing and therefore could have justified a waiver of the requirements of paragraph (1)(d) and (e) of the Citizenship Act. The Citizenship Judge was therefore required, at least, to consider such in the reasons. The Applicant relies on the case of Bhatti v Canada (Minister of Citizenship and Immigration), 2010 FC 25, 87 Imm LR (3d) 166, in support of this argument, and asks the Court to use a similar rationale in this matter.

24     To be brief, the Court notes that the Applicant's argument on this issue is based on a supposition that the Citizenship Judge actually had the document before him. As discussed above, the Court is not convinced that it was; therefore, the Court finds that this argument is without merit.

25     In any event, even if the Court did agree that the document had been put before the Citizenship Judge, this factor would not have been sufficient to warrant a waiver of the requirements of the Citizenship Act. In the present case, unlike the Applicant in Bhatti, above, there is nothing on the record that demonstrates that Mr. Al-Kaisi's capacity to take the citizenship test would be impeded in the future.

26     The Court notes that in the case of Bhatti, above, this Court was deciding on a case of an applicant who had serious and permanent vision problems caused by diabetic retinopathy, which made it difficult for her to study or perform any written form of the citizenship test. The Court found that Ms. Bhatti's medical condition was sufficiently serious to warrant consideration of a waiver of the language and knowledge requirements, as it would inevitably continue to impede her preparation for the citizenship test. These facts are highly distinguishable from the Applicant's circumstances.

27     As the Applicant has provided no further evidence of special circumstances to justify a favourable recommendation to waive the requirements of paragraph (1)(d) or (e) of the Citizenship Act, the Court does not see a need to comment further on this issue.

IX. Conclusion

28     For all of the above reasons, the Applicant's appeal is dismissed.

JUDGMENT

THIS COURT'S JUDGMENT is that the Applicant's appeal be dismissed.

Obiter:

The Court recognizes that having to reapply and retake the citizenship test will require additional time, energy and resources from the Applicant, however, there is no evidence on the record that he will be unable to proceed with a new application. The Applicant can reapply for citizenship and use the time before his next citizenship test to hone his language skills and acquire a basic fundamental knowledge of the history, political structure, and characteristics of Canada.

SHORE J.

TIME AWAY FROM CANADA RESULTS IN CITIZENSHIP DENIAL

The situation described below happens quite often. Beware of applying for captainship too soon!


Edwards v. Canada (Minister of Citizenship and Immigration)

Between
Fiona Jane Edwards, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 777

2014 FC 748

Docket: T-1731-13

 Federal Court
Edmonton, Alberta

Roy J.


Heard: June 10, 2014.
Judgment: July 28, 2014.

(29 paras.)



 

JUDGMENT AND REASONS

1     ROY J.:-- Fiona Jane Edwards, the applicant, seeks to appeal, pursuant to subsection 14(5) of the Citizenship Act, RSC, 1985, c C-29 [the Act], the decision of a Citizenship Judge, on September 3, 2013, to refuse her Canadian citizenship application.

2     The facts of the case are simple and undisputed. The applicant is a citizen of the United Kingdom. She immigrated to Canada on March 3, 2003. Mrs Edwards is the mother of a child born on June 1, 2002. The daughter is a citizen of the United Kingdom and Canada. The applicant acquired permanent resident status on March 15, 2005. The application for citizenship was made on May 15, 2009. Given her frequent absences from Canada for work and vacations, the applicant had accumulated 892 days of physical presence in Canada.

3     Section 5 of the Act provides for the conditions under which citizenship shall be granted. It is paragraph 5(1)(c) that is relevant for our purposes:

Grant of citizenship

 

·        5. 

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

...

 

·        (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; 

* * *

Attribution de la citoyenneté

 

·        5. 

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

...

 

·        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     In her decision, the Citizenship Judge concluded that the relevant period in order to assess the residence requirements was May 15, 2005 to May 15, 2009, the day she made her application. Given that permanent residence was acquired some two months before the application to become a citizen was made, Mrs Edward showed an early interest in being awarded the Canadian citizenship.

5     However, by making her application so early after becoming a permanent resident, the applicant fell short of the number of days of residence found in paragraph 5(1)(c). Out of the 1460 days during that period, between May 15, 2005 and May 15, 2009, it is not disputed that the applicant was 203 days short as the Act seems to require at least 1095 days out of 1460 days. At 892 days, the applicant was in Canada 61% of 4 years. Indeed, the shortfall of 203 days is close to 20% short of the target.

6     In the case at hand, the Citizenship Judge considered the availability of three accepted tests for residency and chose the one requiring the physical presence for 1095 days out of 1460 days. There was no ambiguity in the choice that was made. The Citizenship Judge also specifically declined to make favourable recommendations to waive some requirements under subsection 5(3) and for a discretionary grant of citizenship under subsection 5(4) in special circumstances, concluding that there was no evidence to justify such a recommendation.

7     The applicant takes issue with the choice made by the Citizenship Judge to pick a test, one dubbed "physical presence", which resulted in the decision to dismiss her application for citizenship. She claims that the use of the criteria found in Re Koo, [1993] 1 FC 286 [Koo], another test that is available and has been used by some judges in some circumstances, should have produced a different result in view of her circumstances and justification for not meeting the threshold of 1095 days.

8     It will not be necessary to examine what standard of review should apply and whether or not the Koo criteria could have been satisfied in this case because I have concluded that the Citizenship Judge was entitled to decide to rely on the "physical presence" test as she did.

9     Mrs Edwards does a remarkable job of presenting the views of some of my colleagues who have lamented the availability of different tests to Citizenship Judges. That has made some conclude that the Koo test ought to prevail. With great respect, I disagree.

10     In spite of what would appear to many to be the intent of Parliament that a person be physically present, Thurlow ACJ ruled in Re Papadogiorgakis, [1978] 2 FC 208 [Papadogiorgakis], that it would be possible to consider a different period of time because the word "residence" is not defined in the Act. Residence does not require physical presence as long as the person has centralized her mode of living somewhere in Canada.

11     I would have thought that Parliament's intent could rather easily be deciphered. I find it difficult to accept that deemed residence is possible where a non-permanent resident is allowed, through a formula, one-half day of residence for every day that person is residing in Canada. Parliament's intent, surely, is that the non-permanent resident be in Canada for that residence to count as half for the purpose of being granted citizenship. The alternative would lead to an absurdity: a non-permanent resident could be credited on half-day of residence for residing outside of Canada. The purposive examination of the provision would lead me to conclude that Parliament intended physical presence to be the test. It is difficult to see how a complete absence from Canada can count when Parliament has expressed itself so clearly by even providing for a formula in certain circumstances. If for non-permanent residents only physical presence in Canada can satisfy the formula, I would have thought that the same physical presence would have applied to permanent residents: one cannot require physical presence for one class of applicants (non-permanent residents) and not for another (permanent residents).

12     Actually the use of the word "shall" in the chapeau of subsection 5(1), which commands an imperative (Interpretation Act, RSC, 1985, c I-21, section 11), suggests that Parliament did not intend to confer a broad discretion to Citizenship Judges, as the Papadogiorgakis decision allows and the Koo, supra, decision suggests to a lesser extent. To my way of thinking, a construction put on paragraph 5(1)(c) which would allow someone to spend barely 79 days in Canada, like in Papadogiorgakis, supra, hardly conforms to a statute that speaks in terms of "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".

13     Indeed, Reed J in Koo, supra, seems to have recognized that the amendments to the Act in 1978 did not show an intent that physical presence for the whole three-year period was not required. She writes at page 292:

 

·        I have read the Parliamentary debates and committee proceedings of that period and can find nothing to substantiate that conclusion. Indeed, quite the contrary seems to be the case. The requirement of three-year residence within a four-year period seems to have been designed to allow for one year's physical absence during the four-year period. Certainly, the debates of the period suggest that physical presence in Canada for 1,095 days was contemplated as a minimum. In any event, as has been noted above, the jurisprudence which is now firmly entrenched does not require physical presence for the whole 1,095 days. 

14     Without further analysis, Reed J leaves the issue hanging and rather concludes that the jurisprudence "is now firmly entrenched" and it "does not require physical presence for the whole 1,095 days." She then proceeds to suggest a series of questions in order to assist in the determination of "whether Canada is the country in which he or she has centralized his or her mode of existence." (page 293)

15     I note in passing that Reed J relies on the physical presence significantly in many of the questions that should be considered under the test she devised. Question 4 puts the issue squarely: "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?"

16     I find myself in general agreement with Muldoon J in Re Pourghasemi, [1993] 62 FTR 122, a decision which came after Papadogiorgakis, supra, and Koo, supra, and considered both. After commenting that Papadogiorgakis, supra, "stretches the meaning of paragraph 5(1)(c) of the present Citizenship Act almost beyond recognition" (para 5), Muldoon J, in his colourful way, proposes the following rationale for his reading of the section that Parliament meant an accumulation of three years of residence:

 

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

17     I share the view of Muldoon J that the reference in subsection 5(1) of "at least three years of residence in Canada" signals that Parliament meant physical presence. He said:

 

·        3 It is clear that the purpose of paragraph 5(1)(c) is to insure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized". 

18     It is not overly surprising that the debate, involving three different ways to interpret the test of residence in the Act, has remained unresolved. Now that Bill C-24, An Act to amend the Citizenship Act and to make consequential amendments to other Acts, 2nd Sess, 41st Parl, 2014 (assented to 19 June 2014), SC 2014, c 22 (short title being Strengthening Canadian Citizenship Act), has received Royal Assent, one hopes that the uncertainty has disappeared (see clause 3 of the Strengthening Canadian Citizenship Act which replaces paragraph 5(1)(c)).

19     What is a Citizenship Judge to do in those circumstances? Justice Lutfy, before he became Chief Justice of this Court, in Lam v Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410, ruled that Citizenship Judges may apply any of the three tests. Lutfy J was followed by Pelletier J, as he then was, in Canada (Minister of Citizenship and Immigration) v Mindich, (1999) 170 FTR 148 [Mindich].

20     There have been some views expressed in the last few years proposing that the Court depart from the position expressed in 1999 that it is for the Citizenship Judge to decide on the approach to be chosen. As put aptly by Pelletier J, "[t]he function of the judge sitting in appeal is to verify that the Citizenship Judge has properly applied the test of his or her choosing." (Mindich, para 9)

21     Starting perhaps with Canada (Minister of Citizenship and Immigration) v Chuang, 1999 CanLII 8716 (FC), where it was suggested that the test most favourable to the applicant ought to be used, a certain jurisprudence has developed that the Koo test is to be preferred. Such a view found an articulation in Canada (Citizenship and Immigration) v Takla, 2009 FC 1120. In that case, Mainville J, as he then was, wrote:

 

·        [47] Although I am of the view that the test of physical presence for three years maintained by the first jurisprudential school is consistent with the wording of the Act, it appears to me preferable to promote a uniform approach to the interpretation and application of the statutory provision in question. I arrive at this conclusion in an attempt to standardize the applicable law. It is incongruous that the outcome of a citizenship application is determined based on analyses and tests that differ from one judge to the next. To the extent possible, coherence in administrative decision making must be fostered, as Mr. Justice Gonthier properly indicated in IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, at page 327: 

 

·        It is obvious that coherence in administrative decision making must be fostered. The outcome of disputes should not depend on the identity of the persons sitting on the panel for this result would be "[TRANSLATION] difficult to reconcile with the notion of equality before the law, which is one of the main corollaries of the rule of law, and perhaps also the most intelligible one": Morissette, Le contrôle de la compétence d'attribution: thèse, antithèse and synthèse (1986), 16 R.D.U.S. 591, at p. 632. 

22     In Wong v Canada (Citizenship and Immigration), 2008 FC 731, Phelan J had, the year before, found that the "strict physical presence test has become of limited, if any, use and would (if it were the appropriate test) hardly require the involvement of a citizenship judge in the mathematical calculation of physical presence." (para 24) Harrington J, in Canada (Citizenship and Immigration) v Salim, 2010 FC 975, found that if the threshold of 1095 days of residence in Canada has not been met, the judge had to consider the Koo test. Similarly, Barnes J in Ghaedi v Canada (Citizenship and Immigration), 2011 FC 85, expressed the view that he preferred the line of cases following Takla, supra, although he reckoned that "there will continue to be two lines of divergent authority on this issue and others may be quite properly disposed to follow Lam, above." (para 16)

23     Scott J, as he then was, followed the approach advocated in Takla, supra, in his decision in Khan v Canada (Citizenship and Immigration), 2011 FC 215. There has also been some variation on that theme. Mactavish J, in Cardin v Canada (Citizenship and Immigration), 2011 FC 29, recognized that there are three approved residency tests. It would seem that the choice of tests is not as free as the Lam case proposes: "If the underlying rationale for the application of a particular test is not present on the facts of the case, then the application of the test simply does not make sense. That is, it is not reasonable." (para 18)

24     With great respect, I cannot follow this line of cases. I find it impossible to relegate what I believe is the clear language of section 5 in order to apply the Koo test. I would have thought that the Koo test is useful in cases where the applicant is very close to the 1095-day threshold and the Citizenship Judge does not want to rely on a recommendation to the executive branch of Government, in accordance with subsection 5(4) of the Act (subsection 5(4) gives discretion to the Governor in Council for citizenship to be granted without meeting the conditions precedent; the new subsection 5(4), once Bill C-24 has been proclaimed into law, grants that same discretion in the Minister.) It is ironic that the preference for the Koo test would be based on the need to standardize the applicable law as the uncertainty comes from judge-made-law created in spite of what, to some, would appear to be an unambiguous legislative pronouncement. Even the author of the Koo test recognized that Parliament's intent may well be the physical presence test.

25     Part of the rationale for espousing the Koo test was that the uncertainty in the law was seen as becoming permanent (see Tackla, supra, at para 46). With the passage of Bill C-24, a temporary situation would appear to have been finally remedied.

26     I cannot find any reason to do away with the physical presence test (Pourghasemi, supra). The existence of some case law to a different effect does not change the clear wording of para 5(1)(c) of the Act(see also Murphy v Canada (Citizenship and Immigration), 2011 FC 482). The Chief Justice of this Court reviewed carefully our jurisprudence in Huang v Canada (Citizenship and Immigration), 2013 FC 576. He concluded:

 

·        [24] What is clear from the foregoing is that the jurisprudence pertaining to the test(s) for citizenship remains divided and somewhat unsettled. 

 

·        [25] In this context, it is particularly appropriate that deference be accorded to a citizenship judge's decision to apply any of the three tests that have a long and rich heritage in this Court's jurisprudence. 

27     In my view, once the Citizenship Judge has settled on the test to be applied, the role of a judge of this Court is limited to ensuring that the test has been properly applied. "Blending" is not appropriate (Shubeilat v Canada (Citizenship and Immigration), 2010 FC 1260; Rousse v Canada (Citizenship and Immigration), 2012 FC 721; Sinanan v Canada (Citizenship and Immigration), 2011 FC 1347).

28     The initial decision to rely on one test is however one that the Citizenship Judge could make. I share the view of Rennie J expressed at paragraph 53 of the decision in Martinez-Caro v Canada (Citizenship and Immigration), 2011 FC 640:

 

·        [53] It is my opinion that Re Pourghasemi is the interpretation that reflects the true meaning, intent and spirit of subsection 5(1)(c) of the Act: Rizzo, paras 22 and 41. For this reason it cannot be said that the Citizenship Judge erred in applying the Re Pourghasemi test. Furthermore, the Citizenship Judge correctly applied the Re Pourghasemi test in determining that a shortfall of 771 days prevented a finding that 1,095 days of physical presence in Canada had been accumulated. 

29     As a result, the appeal must fail. There is no order as to costs.

JUDGMENT

THIS COURT'S JUDGMENT is that the appeal is dismissed, without costs.

ROY J.
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