ROBABEH ALINAGHIZADEH Applicant v. THE MINISTER OF CITIZENSHIP AND, 2011 FC 332

Federal Court Cour fédérale Date: 20110318 Docket: T-1237-10 Citation: 2011 FC 332 Ottawa, Ontario , March 18, 2011 PRESENT: The Honourable Justice Johanne Gauthier BETWEEN: ROBABEH ALINAGHIZADEH Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] Mrs. Robabeh Alinaghizadeh contests the validity of the decision of a Citizenship Judge denying her application for citizenship pursuant to subsection 14(5) of the Citizenship Act , RS 1985, c C-29 (the Act ). Like many recent decisions, this application raises the issue of which test should be applied to establish residency under paragraph 5(1) (

c) of the Act . I. Background [ 2 ] The Applicant is a fifty-seven year old citizen of Iran . She came to Canada on July 17, 1992 and became a permanent resident on that date. Her husband, Mr. Seyed Hossein Montazemi-Safari and their three children have all obtained Canadian citizenship years ago. [ 3 ] For reasons unexplained, the Applicant waited many years to apply for Canadian citizenship.

She applied for Canadian citizenship on September 7, 2006 and at that time alleged that she had been outside Canada for 166 days (allegedly five trips) out of the four years preceding her application (September 7, 2002 to September 7, 2006). [ 4 ] In her Residence Questionnaire dated April 4, 2007, she alleged that she was outside Canada for 164 days (still five trips), and she provided some supporting documentation.

[5] She was issued a Notice to Appear on February 9, 2010 and effectively appeared before a Citizenship Judge on March 2,2010. At the said interview, although this is disputed, she was accompanied by her son-in-law (Hossien Montazemi-Safari) who,according to the Respondent, acted as her interpreter. [6] At the conclusion of the hearing, the Citizenship Judge requested that the Applicant provide additional supporting documentsand complete another Residence Questionnaire.

It appears from a handwritten note on pages 19 and 32 of the Respondent​s Record thatthe Applicant understood that she had to establish her physical presence in Canada albeit she appears to have misunderstood the numberof days required pursuant to paragraph 5(1)(

c) of the Act (900 days instead of 1095). [7] On March 17, 2010 she provided additional information and in her Residence Questionnaire she claimed that she was onlyabsent from Canada for 142 days (four trips). [8] On June 1, 2010, the Applicant was informed by letter that her application for citizenship had been denied because she didnot meet the requirements of paragraph 5(1)(

c) of the Act (the relevant provisions of the Act are reproduced in Annex A). The letter alsomentions, among other things, that at the hearing the Citizenship Judge had requested that she provide additional documents because hewas not satisfied by those already submitted, and that unfortunately these documents were not found to be sufficient to meet her burden ofestablishing the residence requirement. II. Issues [9] The Applicant raises three issues: i.

The decision maker breached procedural fairness by refusing her the right to be assisted by a family member, whowould act as an interpreter during the hearing. ii. The decision maker breached his duty to provide the Applicant with proper and sufficient reasons, particularlybecause he failed to consider the totality of the documentation submitted by the Applicant. iii.

The decision maker erred in failing to apply the qualitative test set out in Koo (Re), (FC), [1993]1 FC 286. [10] At the hearing, the Applicant​s counsel attempted to raise a new argument, specifically, that even if the Citizenship Judge wasentitled to apply the physical presence test set out in Pourghasemi (Re), (1993) 62 FTR 122, Imm LR (2d) 259, his decision isunreasonable given that the Applicant had established that she was in Canada more than 1095 days. The Applicant also sought leave totestify viva voce on the issue of the lack of an interpreter.

The Respondent rightly raised an objection since neither this argument, nor theevidence alluded to by the Applicant​s counsel at the beginning of the hearing was included in the record. Both requests were refused asthere was no explanation as to why the Applicant failed to seek leave to file a reply affidavit or additional submission. Then, theApplicant verbally requested an adjournment and the right to file new evidence and an amended Application Record. This request wasdenied for various reasons, including that no explanation was given for the failure to raise these issues earlier. III.

Analysis [11] At the hearing the Applicant​s counsel acknowledged that there was absolutely no evidence in support of the first issue, for theApplicant​s affidavit does not mention anything about the alleged refusal and the lack of

interpretation.

Moreover, the Respondent relieson the Interpreter​s oath signed by the Applicant​s son-in-law at the beginning of the interview and on the notes of the Citizenship Judgewhich state that the Applicant​s son-in-law acted as an interpreter because she could not communicate correctly in either official language(free translation of notes, p. 12 of the Respondent​s Record).[1] Nevertheless, the Applicant​s counsel still insisted that the Court considerhis argument. [12] Obviously in the circumstances, there is not much to say except that the Applicant has failed to establish the factualbackground in support of this alleged breach of procedural fairness.

In fact, it appears that the Applicant did indeed have theinterpretation assistance of Mr. Montazemi-Safari. [13] With respect to the second issue, the Applicant relies on subsection 14(3) of the Act which mandates that the ​judge shallforthwith notify the applicant of his decision, of the reasons therefor and of the right to appeal.​

[14] It is not disputed that the Applicant never requested further reasons from the Citizenship Judge after receiving the letter ofdenial, dated June 1, 2010. It also appears from the Respondent​s Record that on April 28, 2010, the Citizenship Judge wrote detailednotes supporting his decision in which he reviews in sixteen paragraphs all the documentation provided by the Applicant. In the saidnotes, the Citizenship Judge indicates that the Applicant had to establish on the balance of probabilities that she meets the criteria set outin the Act particularly paragraph 5(1)(c).

He also mentions that the Applicant had not provided sufficient documentation to support herdeclarations of residence in Canada for the applicable period. She had not submitted the totality of documents he had requested duringthe March 2, 2010 interview. He adds that overall, the evidence remained insufficient and that many questions raised were stillunanswered and weighed heavily on the credibility of Mrs.

Alinaghizadeh. [15] The Citizenship Judge then reiterates that he has not been convinced on a balance of probabilities that the Applicant reallyresided in Canada for the 1318 days she declared in her last Residence Questionnaire without concrete evidence, particularly in respect ofthe dates of absence and other errors in her previous declarations for which no explanation or little explanation was provided. Finally, henotes that ​considering the number of days where the residence of Mrs. Alinaghizadeh is still approximate, if one does not take intoconsideration the overall period not truly justified, Mrs.

Alinaghizadeh does not meet the conditions for the grant of citizenship underparagraph 5(1)(

c) of the Act​ (free translation of last paragraph on p. 14 of the Respondent​s Record). [16] The Applicant had a copy of those notes well before she filed her Application Record. [17] Like any other breach of procedural fairness, the question of whether or not the Citizenship Judge gave adequate reasons isreviewable on a standard of correctness (Dunsmuir v New Brunswick, 2008 SCC 9; Canada (Minister of Citizenship and Immigration) vKhosa, 2009 SCC 12 at para 43). [18] In Vancouver International Airport Authority v Public Service Alliance of Canada, 2010 FCA 158 (recently followed inHolmes v Canada (Public Safety and Emergency Preparedness), 2011 FC 112 at para 43), the Federal Court of Appeal reviewed thecaselaw on the adequacy of reasons since VIA Rail Canada v National Transportation Agency, (FCA), [2001] 2 FC25 (CA) to distill the fundamental principles and the purposes involved.

There is no doubt that the letter of June 1, 2010 read togetherwith the notes of April 28, 2010 meets all the requirements described by the Federal Court of Appeal (paragraphs 16-17).

As mentionedby the Court (para 17(a)), the written reasons given form part of a broader context and may be amplified and clarified by extraneousmaterial such as the notes of April 28, 2010. [19] However, in my view, the Citizenship Judge should have sent a copy of his notes with the letter of June 1, 2010 for onecannot circulate two sets of reasons for the same decision ​ notes sent to the Minister with the Notice to the Minister form and the lettersent to the Applicant.

That said, the Applicant did receive a copy of these notes on or about August 13, 2010 when the Certified Recordwas transmitted to her in accordance with Rule 318.[2] She had ample time to consider these notes before she filed her ApplicationRecord in November 2010.

She knows how the documentation she provided was dealt with by the decision maker. [20] In the present circumstances, considering among other things that the Applicant duly filed her appeal and that she and theCourt now have sufficient information to assess whether the decision meets the standard of reasonableness, including the need to providejustification, transparency and intelligibility, the Court is not willing to quash the decision on the basis that these notes were not attachedto the June 1, 2010 letter. [21] As in Dachan v Canada (Citizenship and Immigration), 2010 FC 538 at para 13, the Court is satisfied that this ​technical​breach of procedural fairness simply has no possible material effect on the decision, on the Applicant​s resolve to appeal it or on herability to contest it. [22] Thus, the Court will proceed to examine the reasonableness of the decision based on the reasons set out in the aforementionedletter and the notes of April 28, 2010. [23] In respect of the transparency, intelligibility and justification aspect of the reasonableness standard, the Court cannot agreewith the Applicant that the Citizenship Judge does not clearly indicate which test he used to assess whether she met the requirements ofparagraph 5(1)(

c) of the Act. [24] In fact, it was so clear at all times that he used the quantitative test of physical presence in Canada that the Applicant contested

his right to apply such test instead of the qualitative test set out in Koo (Re), above, and Papadogiorgakis (Re), (FC),[1978] 2 FC 208 (TD). The Applicant also argues that he should have applied the Koo (Re) test once he came to the conclusion that shedid not meet the quantitative test.

Moreover, as mentioned earlier, it appears that after her interview, the Applicant knew that she had toestablish her physical presence in Canada (Respondent​s Record, p. 19 and 32). [25] Turning to the third and final issue which is really the core of this proceeding, the Court has examined very closely all theauthorities submitted by the parties, in light of the different views recently expressed in Canada (Citizenship and Immigration) v Takla,2009 FC 1120[3] and in Hao v Canada (Citizenship and Immigration), 2011 FC 46.[4] [26] In Takla, as has been done by many judges for more than a decade, Justice Robert Mainville (as he then was) expressed theCourt​s frustration that the use of different tests, to assess whether or not a permanent resident meets the residence requirement set out inthe Act, creates what another Judge described as an intolerable situation.

In effect, the privilege sought (citizenship) may be granted toone person while denied to another in identical circumstances, depending on which of two or three ​reasonable​

interpretations of the Act ischosen by the Citizenship Judge reviewing the file. [27] In an obvious attempt to find a solution to the aforementioned situation, Justice Mainville, after essentially stating that, in hisview, the proper and correct

interpretation of paragraph 5(1)(

c) of the Act requires physical presence in Canada for at least 1095 days,went on to conclude that the test in Koo (Re) (presumed to be the dominant test)[5] should nevertheless be the sole standard used toensure uniformity of the law. [28] However, it is now clear that Justice Mainville​s attempt to redress the situation has not been successful, for in my view it issimply not one that can be solved by this Court alone.

This is especially so when one considers, as Justice Richard Mosley did in Hao,above, the various decisions issued since Takla, above, not to mention those issued since Hao. [29] The principle of judicial comity is not useful or applicable here given the diversity in the reasoning adopted by my colleagues(including that many comments were obiters) and the fact that after Takla and possibly in response to it, a new Bill to amend theCitizenship Act (Bill C-37) was tabled on June 10, 2010.

In its current version, this Bill makes it absolutely clear that a permanentresident must be physically present in Canada during the period set out in paragraph 5(1)(c).[6] Is this a confirmation that this is whatParliament had intended all along? [30] That said, I find the reasoning of Justice Mosley particularly compelling.[7] Like in Hao, above, the parties were agreed thatthe Court should review this issue on the standard of reasonableness. Similar to Justice Mosley in Hao (at para 39), I would have haddifficulty finding that this question should be reviewed on a correctness standard.

Had it been so, I would have had to request moredetailed argumentation. In effect, the exercise of embarking on a full and detailed

interpretation of this provision in accordance with therecognized modern approach to statutory

interpretation may be warranted given that it appears to have not been done for some time. [31] Turning back to the reasonableness of the decision before me, it is worth mentioning that in Smith v Alliance Pipeline, 2011SCC 7, the Supreme Court of Canada clearly reminded reviewing courts that: Indeed, the standard of reasonableness, even prior to Dunsmuir, has always been ​based on the idea that there might be multiple validinterpretations of a statutory provision or answers to a legal dispute​ such that ​courts ought not to interfere where the tribunal​s decision isrationally supported​ (Dunsmuir, at para 41). [32] This was our highest Court​s answer to Alliance Pipeline​s argument that the ​adoption of the reasonableness standard wouldoffend the rule of law by insulating from review contradictory decisions by Arbitration Committees as to the proper

interpretation of s.99(1) of the [National Energy Board Act, RSC 1985, c N-7]​ which was under review in that case (para 38). [33] Like in Hao, above, this Court has not been convinced that it is unreasonable for the Citizenship Judge to have applied thephysical presence or so-called quantitative test to determine whether Mrs. Alinaghizadeh had established on a balance of probabilitiesthat she meets the requirements of paragraph 5(1)(

c) of the Act. Not only does the Judge​s decision in that respect fall within the range ofpossible, acceptable

interpretations of paragraph 5(1)(c), it may well be the only correct one. Thus, the Court cannot agree with theApplicant that the decision maker made a reviewable error in failing to apply the Koo (Re) test. [34] As stated by Justice Eleanor Dawson (as she then was) many years ago in Lin v Canada (Minister of Citizenship andImmigration), 2002 FCT 346 at para 22, the incertitude in the law ​can only be remedied by Parliament clearly expressing its will with

respect to the residency requirement.​ [ 35 ] As noted, this Court does not have to determine whether it was unreasonable for the Citizenship Judge to conclude that the applicant had not established that she was present for 1095 days. Thus, I will simply say that in light of the findings in respect of the quality of the evidence or lack thereof and the applicant​s credibility, it would have been difficult to justify the Court​s intervention. [ 36 ] Mrs. Robabeh Alinaghizadeh can make a new application at any time.

She now knows how important it is for her to provide sufficient documentation to support such an application. She knows that she must provide probative evidence that will place her in Canada during the whole period required. [8] With a new application, she will not have to face the hurdle of a stolen passport (before October 8, 2003).

She will know that she should spare no efforts (money does not appear to be an issue here) to obtain monthly records for the whole period examined as opposed to, for example, a simple letter from her bank stating that she has been a client since 1992 or records covering a very limited period.

I have little doubt that if she puts her mind to it and ensures that she takes no more than 90 days of holidays outside of Canada to visit her friends and family per year during the applicable period, she will obtain her Canadian citizenship like the other members of her family. [ 37 ] Considering the legal issue (third issue) raised in this application, no costs shall be awarded. JUDGMENT THIS COURT​S JUDGMENT is that the application is dismissed without costs. ​Johanne Gauthier​ Judge ANNEX A Citizenship Act (R.S., 1985, c. C-29 )

Loi sur la citoyenneté (L.R., 1985, ch. C-29 ) Grant of citizenship 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 Attribution de la citoyenneté 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

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; (

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; and (

f) is not under a removal order and is not the subject of a declaration by the Governor in Council made pursuant to

section 20. 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;

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;

f) n​est pas sous le coup d​une mesure de renvoi et n​est pas visée par une déclaration du gouverneur en conseil faite en application de l​article 20. Consideration by citizenship judge Examen par un juge de la citoyenneté

(1) An application for (

a) a grant of citizenship under subsection 5(1) or (5), (b) [Repealed, 2008, c. 14, s. 10 ] (

c) a renunciation of citizenship under subsection 9(1), or (

d) a resumption of citizenship under subsection 11(1) shall be considered by a citizenship judge who shall, within sixty days of the day the application was referred to the judge, determine whether or not the person who made the application meets the requirements of this Act and the regulations with respect to the application. Notice to applicant

(3) Where a citizenship judge does not approve an application under subsection (2), the judge shall forthwith notify the applicant of his decision, of the reasons therefore and of the right to appeal. 14.

(1) Dans les soixante jours de sa saisine, le juge de la citoyenneté statue sur la conformité ​ avec les dispositions applicables en l​espèce de la présente loi et de ses règlements ​ des demandes déposées en vue de:

a) l​attribution de la citoyenneté, au

titre des paragraphes 5(1) ou (5); b ) [Abrogé, 2008, ch. 14, art. 10 ]

c) la répudiation de la citoyenneté, au

titre du paragraphe 9(1);

d) la réintégration dans la citoyenneté, au

titre du paragraphe 11(1). Information du demandeur

(3) En cas de rejet de la demande, le juge de la citoyenneté en informe sans délai le demandeur en lui faisant connaître les motifs de sa décision et l​existence d​un droit d​appel.

FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1237-10 STYLE OF CAUSE: ROBABEH ALINAGHIZADEH v. THE MINISTER OF CITIZENSHIP & IMMIGRATION PLACE OF HEARING: Montréal DATE OF HEARING: March 9, 2011 REASONS FOR JUDGMENT AND JUDGMENT BY: GAUTHIER J. DATED: March 18, 2011 APPEARANCES : Ms. Amir Kafshdaran FOR THE APPLICANT Ms. Christine Bernard FOR THE RESPONDENT SOLICITORS OF RECORD : Amir Kafshdaran Montreal , Quebec FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada Montreal, Quebec FOR THE RESPONDENT