ADEKUNLE OLUFEMI DINA Applicant v. MINISTER OF CITIZENSHIP AND, 2013 FC 712

Date: 20130626 Docket: T-81-13 Citation: 2013 FC 712 Toronto , Ontario , June 26, 2013 PRESENT: The Honourable Mr. Justice Hughes BETWEEN: ADEKUNLE OLUFEMI DINA Applicant and MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an appeal from a decision of a Citizenship Judge, who declined to approve the Applicant’s application for Canadian citizenship.

For the reasons that follow I am allowing that appeal and will return the matter for redetermination by that judge. [ 2 ] The Applicant is originally from Nigeria, he together with his wife and family came to Canada in March 2005 and were granted landed immigrant status. His wife has a job at a university in the Toronto area and he and his wife have purchased a home in the Toronto area. The Applicant has a business in which he travels to Nigeria frequently.

The citizenship judge had concerns as to the credibility of the Applicant as to how many days he was actually not in Canada, however, even accepting the Applicant’s evidence at face value, as the Citizenship Judge did, the Applicant had a shortfall of 255 days from the number of days required by section 5(1) (

c) of the Citizenship Act RSC 1985, c. C-29. [ 3 ] The Citizenship Judge elected to apply the test respecting citizenship as established in Re Pourghasemi ,

(1993) F.C.J. No. 232 and determined, on that basis, that the Applicant did not meet the requirements of section 5(1)(

c) of that Act . I repeat a portion of his decision: The applicant insists that he was absent from Canada on seven occasions totalling 620 days only. This, in itself, gives the applicant a shortfall of 255 days. However, I am not satisfied that he was not out of Canada on more than 620 days. I believe that applicant has a credibility issue as to the days he was out of Canada.

On the balance of probabilities, and based on my assessment of the applicant’s testimony, as well as my careful consideration of theinformation and evidence before me, that, while the applicant did declare addresses in Canada during his entire relevant time period, Iam not satisfied that he was actually living – was physically present – in Canada on the number of days he claims to have been. I have decided to use the strict test as established by the Honourable Mr. Justice Muldoon in Re Pourghasemi –

(1993) F.C.J. No. 232(OL)(T.D.) [4] Applicant’s Counsel before me argued that had the Citizenship Judge elected to apply the test in Re Koo, (FC), [1993] 1 FC 286, the Applicant would have satisfied those criteria and would have been entitled to Canadian citizenship. [5] The jurisprudence in this area was recently reviewed by Chief Justice Crampton of this Court in Huang v Canada (Ministerof Citizenship and Immigration), 2013 FC 576. At paragraph 2 of his reasons he recognized that the jurisprudence needed clarification,possibly by legislative amendment or by a reference to this Court under

section 18.3(1) of the Federal Courts Act. He wrote: 2 The optimal resolution of this state of affairs would be for Parliament to legislate a clearer test for citizenship under the CitizenshipAct, RSC 1985 c C-29. The Court has noted this on several occasions (see, for example, Harry (Re) (FC), [1998] FCJNo 189, at paras 15-26; Imran v Canada (Minister of Citizenship and Immigration), 2012 FC 756, at para 32 [Imran]; Hao v Canada(Minister of Citizenship and Immigration), 2011 FC 46, at para 50 [Hao]; and Ghaedi v Canada (Minister of Citizenship andImmigration), 2011 FC 85, at para 16).

Another potential approach would be for a citizenship judge to bring a reference to the Courtunder subsection 18.3(1) of the Federal Courts Act, RSC 1985, c F-7 [FC Act]. Among other things, this would provide an opportunityfor the issue to then be brought before the Federal Court of Appeal, pursuant to paragraph 27(1)(

d) of the FC Act, to finally settle thedivergence in this Court's jurisprudence that has persisted now for several decades. [6] The Chief Justice reviewed the state of jurisprudence in this Court and, at paragraphs 36 to 44 determined that there werethree different tests for citizenship, any one of which a Citizenship Judge could elect to apply. I repeat what he wrote at paragraphs 37and 38: 37 As noted above, the jurisprudence of this Court has established three tests for citizenship.

These are generally known as the"centralized mode of living" test, the Koo test (which focuses upon where the applicant "regularly, normally or customarily lives") andthe "physical presence" test. 38 It is now well established that before any of these tests can be applied, an applicant for citizenship must establish that he or she isphysically resident in Canada (Takla, above, at para 50; Martinez, above, at para 9; Hao, above, at para 24; Elzubair, above, at para13). [7] Turning to the present case, the Citizenship Judge was not wrong in stating that, even on the Applicant’s own submissionshe was 255 days short, and was not wrong in applying the “physical presence” that of Pourghasemi, supra.

Nonetheless, I will return thematter for re-determination. [8] My reasoning for returning the matter is that persons such as the Applicant here should not be put in a position of doubt as towhat test a Citizenship Judge will be applying. The three different tests could yield a different result on the same set of facts. It is adenial of natural justice not to reveal to the Applicant, prior to the time that the matter is to be determined, which of the three tests will beapplied by the Judge.

In that way the Applicant, and Applicant’s Counsel will know the case to be met. [9] The messy state of the jurisprudence is largely a result of inconsistent and contradictory jurisprudence in the Federal Courtfor which this Court must bear the blame. No appeal from decisions such as this one is possible, however if the Citizenship Commissionwere to refer a question to this Court under

section 18.3(1) of the Federal Courts Act, any decision of this Court could be appealed to theFederal Court of Appeal. [10] Therefore, I will return the matter for redetermination by the same judge. That judge is to give adequate notice to theApplicant as to which test will be applied. That judge is strongly urged to consider a

section 18.3(1) reference. I will not make any orderas to costs.

JUDGMENT THIS COURT’S JUDGMENT is that: 1. The appeal is allowed; 2. The matter is returned for redetermination by the same Citizenship Judge who shall give adequate notice as the test to be applied; 3. The Citizenship Commission is urged to make a reference as to the proper test to this Court under

section 18.3(1) of the Federal Courts Act ; and 4. No Order as to costs. “Roger T. Hughes” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-81-13 STYLE OF CAUSE: ADEKUNLE OLUFEMI DINA V MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: June 26, 2013 REASONS FOR JUDGMENT AND JUDGMENT BY: HUGHES J. DATED: June 26, 2013

APPEARANCES : Pius L. Okoronkwo FOR THE APPLICANT Tessa Kroeker FOR THE RESPONDENT SOLICITORS OF RECORD : Pius L. Okoronkwo Barrister and Solicitor Toronto , Ontario FOR THE APPLICANT William F. Pentney Deputy Attorney General of Canada FOR THE RESPONDENT