2012 FC, 2012 FC 1516

Date: 20121219 Docket: T-2111-11 Citation: 2012 FC 1516 Montréal , Quebec , December 19, 2012 PRESENT: The Honourable Madam Justice Tremblay-Lamer BETWEEN: THE MINISTER OF CITIZENSHIP AND IMMIGRATION Applicant and REZA AYATIZADEH Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an appeal by the Minister of Citizenship and Immigration [the Minister] pursuant to subsection 14(5) of the Citizenship Act , RSC 1985, C-29 [the Act] from the decision of a citizenship judge, dated November 4, 2011, granting the respondent citizenship, on the basis that the citizenship judge erred in finding that the respondent had met the residency requirement under paragraph 5(1) (

c) of the Act. [ 2 ] The respondent is a citizen of Iran. On July 4, 2003 he entered Canada and was landed as a permanent resident. He applied for citizenship on May 10, 2008. The relevant period for calculating his residence in Canada is therefore May 10, 2004 to May 10, 2008. [ 3 ] On April 28, 2009 a citizenship agent met with the respondent and asked him to complete a residence questionnaire.

The agent considered the documents the respondent had submitted, including photocopies of his passports, pay stubs and bills, and proceeded to send a memorandum to the citizenship judge outlining her concern that the respondent had provided insufficient proof of his residency in Canada during the relevant period. [ 4 ] The respondent appeared before the citizenship judge on October 11, 2011. After the hearing the respondent submitted additional evidence relevant to the period at issue, including pay stubs, college transcripts and an attestation of participation in a

language training program. [ 5 ] The entire decision of the citizenship judge reads as follows: The applicant has (20) twenty days to provide us with additional evidence to sustain his declaration made during the hearing. I’ve attached the list of requested documents. AA [initials of Judge Ayache]. No RQ [Residence Questionnaire] given to applicant. No need! Applicant submitted part of the requested documents. They are satisfactory.

On balance and according to the criteria as defined by Justice Reed in Re: Koo , I approve the application. [ 6 ] The issue in the present application is whether the citizenship judge erred in finding that the respondent met the residence requirement set out in paragraph 5(1) (

c) of the Citizenship Act . [ 7 ] A citizenship judge’s decision that a person meets the residency requirement, which is a question of mixed fact and law, is reviewable on the reasonableness standard ( El-Khader v Canada (Minister of Citizenship and Immigration) , 2011 FC 328 at para 7 ; Canada (Minister of Citizenship and Immigration) v Saad , 2011 FC 1508 at para 9 ). [ 8 ] Paragraph 5(1) (

c) of the Act requires an applicant to have accumulated at least three years of residence in Canada during the four years immediately preceding the date of his or her application: 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; 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;

[9] The jurisprudence has recognized three possible approaches to the meaning of the word “residence” in paragraph 5(1)(

c) ofthe Act: physical presence in Canada (Re Pourghasemi, [1993] FCJ 232, 62 FTR 122), centralized mode of living in Canada (RePapadogiorgakis, (FC), [1978] 2 FC 208, 88 DLR (3d) 243 (TD)), or whether the person “regularly, normally orcustomarily lives” in Canada (Re Koo (1992), (FC), [1992] FCJ 1107, 59 FTR 27 [Koo]). [10] This Court has held that any of these approaches are reasonable and it is open to the citizenship judge to adopt any one ofthese schools of thought as long as the chosen test is applied properly (Lam v Canada (Minister of Citizenship and Immigration), (FC), [1999] FCJ 410 at para 14).

However, some members of the Court have found that only one of the tests is the correctone (see for example El Ocla v Canada (Minister of Citizenship and Immigration), 2011 FC 533; Dedaj v Canada, 2010 FC 777, 90Imm LR (3d) 138; Martinez-Caro v Canada (Minister of Citizenship and Immigration), 2011 FC 640; Hysa v Canada (Minister ofCitizenship and Immigration), 2011 FC 1416; Al Khoury v Canada (Minister of Citizenship and Immigration), 2012 FC 536). In the caseat bar, the Minister did not argue that the citizenship judge applied the wrong test to determine residence for the purpose of paragraph5(1)(

c) of the Act. It is therefore not necessary for me to address this issue on the present appeal. [11] The applicant submits that a citizenship judge who chooses to apply the reasoning in Koo must make it clear that all relevantfactors were addressed in reaching the decision (Seiffert v Canada (Minister of Citizenship and Immigration), 2005 FC 1072 at para 9[Seiffert]). The applicant claims that the citizenship judge in the case at bar erred by not mentioning which factors of the Koo test wererelevant to his decision.

The applicant further argues that three of the Koo factors require the citizenship judge to determine when therespondent was physically present in Canada during the relevant period and that the citizenship judge erred by not doing so. [12] According to the respondent, the citizenship judge must leave no doubt that he or she addresses the important and relevantfactors (Seiffert at para 9). The decision in the case at bar is reasonable because it clearly mentions the Koo factors were addressed andthat the required documents were satisfactory.

With respect, I disagree for the following reasons. [13] Inadequacy of reasons is a significant flaw that contributes to the unreasonableness of a citizenship judge’s decision (see, forexample, Canada (Minister of Citizenship and Immigration) v Al-Showaiter, 2012 FC 12 [Al-Showaiter]; Canada (Minister ofCitizenship and Immigration) v Abdallah, 2012 FC 985 [Abdallah]; Canada (Minister of Citizenship and Immigration) v Raphaël, 2012FC 1039). On this question, I endorse the following comments made by my colleague Justice Near in Al-Showaiter, which were alsosupported by Justice de Montigny in Abdallah: 30.

Given the ongoing discussion concerning citizenship cases, it would be of great assistance to the Court if citizenship judges stateclearly in one or two sentences which test they are using and explain their reasons for arriving at a particular conclusion. The detailrequired in these reasons will vary given the test employed and the surrounding context. However, even where it can be inferred that thephysical presence in Canada test (which generally, in my view, is the test most in line with the legislation) is being used, citizenshipjudges must state that this is the case.

Citizenship judges should also proceed to explain in more or less detail depending on the facts ofthe case why they either accepted or rejected the evidence placed before them. [Emphasis added.] [14] The reasons in the case at bar are only one paragraph long and reproduced above in their entirety. The decision states that theapplication was approved on the basis of the Koo criteria and that the parts of the requested documentation submitted by the respondentafter the hearing were satisfactory.

There is no explanation as to which documents satisfied the citizenship judge or why the documentshe received subsequent to the hearing responded to his concerns.

All six factors from Koo did not need to be explicitly reviewed andanalyzed by the citizenship judge, but at the very least he had to address the Koo factors which were relevant to his decision, dependingon the facts of the case, as required by this Court in Seiffert and Al-Showaiter, above. [15] In the case at bar, with the lack of adequate reasons I have identified, it is far from clear how the citizenship judge arrived athis decision to approve the respondent’s citizenship application based on the evidence before him.

I will therefore not attempt toundertake an analysis of what elements in the evidence, if any, could have resulted in a reasonable decision (Justice Near took a similarapproach in Al-Showaiter at paragraphs 24-28). [16] For these reasons, the decision of the citizenship judge is unreasonable. Therefore, the appeal is allowed and the matter is sentback to a different citizenship judge for redetermination.

JUDGMENT THIS COURT’S JUDGMENT is that: The appeal is allowed. The matter is referred back to another citizenship judge for redetermination. “Danièle Tremblay-Lamer” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-2111-11 STYLE OF CAUSE: The Minister of Citizenship and Immigration v Reza Ayatizadeh PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: December 18, 2012 REASONS FOR JUDGMENT AND JUDGMENT: TREMBLAY-LAMER J. DATED: December 19, 2012 APPEARANCES :

Thomas Cormie FOR THE APPLICANT Mahsa Ebrahim Nejad FOR THE RESPONDENT SOLICITORS OF RECORD : William F. Pentney Deputy Attorney General of Canada Montréal , Quebec FOR THE APPLICANT Mahsa Ebrahim Nejad Montréal, Quebec FOR THE RESPONDENT