Canada (Minister of Citizenship and Immigration) v. Saad, (2011) 404 F.T.R. 9 (FC)

• Judge: Bédard, J.
• Court: Federal Court (Canada)
• Case Date: December 05, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 404 F.T.R. 9 (FC);2011 FC 1508

Can. (M.C.I.) v. Saad (2011), 404 F.T.R. 9 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] F.T.R. TBEd. JA.011

Ministre de la Citoyenneté et de l'Immigration (demandeur) v. Samer Saad (défendeur)

(T-471-11; 2011 CF 1508; 2011 FC 1508)

Indexed As: Canada (Minister of Citizenship and Immigration) v. Saad

Federal Court

Bédard, J.

December 21, 2011.

Summary:

The Minister of Citizenship and Immigration appealed a decision of a citizenship judge approving Saad's citizenship application. The Minister argued that the citizenship judge's reasons as to whether Saad met the residence test in s. 5(1)(c) of the Citizenship Act were inadequate.

The Federal Court allowed the appeal.

Aliens - Topic 2510

Naturalization - General - Duties of Citizenship Judge (incl. duty re reasons) - [See third Aliens - Topic 2525 ].

Aliens - Topic 2525

Naturalization - Qualifications - Residence - The Federal Court noted that the Citizenship Act did not provide a definition of "residence" and citizenship judges did not all apply the same interpretation - Three tests had developed in the jurisprudence, namely: (1) the physical presence test (Pourghasemi); (2) a less strict approach to physical presence that involved a more qualitative analysis of the concept of residence, including the test of strong attachment to Canada (Papadogiorgakis); and (3) the similar test that defined residence as a place where a person centralized his or her mode of existence (Koo) - The jurisprudence recognized that the different approaches were reasonable and citizenship judges could adopt the approach of their choice, provided that their application of the chosen test was reasonable - See paragraph 13.

Aliens - Topic 2525

Naturalization - Qualifications - Residence - The Federal Court agreed that, in the absence of legislative intervention, citizenship judges could continue to adopt any of the traditionally recognized tests for residence within the meaning of the Citizenship Act - The court (Bédard, J.) stated that "Even though I consider it unfortunate that the fate of some applications for citizenship may depend, in part, upon the identity of the citizenship judge who processes the application and the interpretation of the concept of residence that that judge endorses, I believe that the three interpretations that have been traditionally accepted as reasonable are still reasonable and will continue to be so in the absence of legislative action" - See paragraph 14.

Aliens - Topic 2525

Naturalization - Qualifications - Residence - The Federal Court stated that citizenship judges were required to provide reasons for their decisions regardless of which test for residency they choose to apply - The court agreed that at the very least, the reasons for a citizenship judge's decision should indicate which residency test was used and why that test was or was not met - See paragraph 15.

Aliens - Topic 2562

Naturalization - Appeals and judicial review - Scope of appeal or review - The Federal Court held that the standard of review of a decision by a citizenship judge as to whether an applicant met the residency requirements under s. 5(1)(c) of the Citizenship Act was reasonableness - See paragraph 9 - The court stated also that the adequacy of reasons was part of the analysis of a decision's reasonableness - See paragraph 10.

Aliens - Topic 2525

Naturalization - Qualifications - Residence - The Minister of Citizenship and Immigration appealed the decision of a citizenship judge granting citizenship to Saad, arguing that the judge's reasons were completely unsatisfactory - Saad argued that the reasons for the decision, together with the judge's notes were sufficient - The Federal Court determined that the reasons were not sufficient and did not satisfy the justification and intelligibility criteria required to make the judge's decision reasonable - The judge did not specify which test for citizenship he used or what documents convinced him that Saad had satisfied the residence criteria - The court, therefore, allowed the appeal and remitted the matter for redetermination - There were no extraordinary circumstances warranting the court making a decision in place of a citizenship judge - See paragraphs 15 to 27.

Cases Noticed:

El-Khader v. Canada (Minister of Citizenship and Immigration) (2011), 386 F.T.R. 142; 2011 FC 328, refd to. [para. 9].

Raad v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 145; 97 Imm. L.R.(3d) 115; 2011 FC 256, refd to. [para. 9].

Hao v. Canada (Minister of Citizenship and Immigration) (2011), 383 F.T.R. 125; 2011 FC 46, refd to. [para. 9].

Deshwal v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 769; 2011 FC 1248, refd to. [para. 9].

Cardin v. Canada (Minister of Citizenship and Immigration) (2011), 382 F.T.R. 164; 2011 FC 29, refd to. [para. 9].

Chaudhry v. Canada (Minister of Citizenship and Immigration) (2011), 384 F.T.R. 117; 2011 FC 179, refd to. [para. 9].

Chowdhury v. Canada (Minister of Citizenship and Immigration) (2009), 347 F.T.R. 76; 2009 FC 709, refd to. [para. 9].

Pourzand v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 276; 16 A.C.W.S.(3d) 222; 2008 FC 395, refd to. [para. 9].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 10].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 424 N.R. 220; 2011 SCC 62, refd to. [para. 11].

Pourghasemi, Re (1993), 62 F.T.R. 122; 39 A.C.W.S.(3d) 251 (T.D.), refd to. [para. 13].

Papadogiorgakis, Re, [1978] 2 F.C. 208; 88 D.L.R.(3d) 243 (T.D.), refd to. [para. 13].

Koo, Re, [1993] 1 F.C. 286; 59 F.T.R. 27 (T.D.), refd to. [para. 13].

Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177; 87 A.C.W.S.(3d) 432 (T.D.), refd to. [para. 13].

Mizani v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 458; 158 A.C.W.S.(3d) 879; 2007 FC 698, refd to. [para. 13].

Canada (Minister of Citizenship and Immigration) v. Takla (2009), 359 F.T.R. 248; 2009 FC 1120, refd to. [para. 14].

Ghaedi v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 47; 332 D.L.R.(4th) 169; 2011 FC 85, refd to. [para. 14].

Canada (Minister of Citizenship and Immigration) v. Elzubair, [2010] F.T.R. Uned. 176; 2010 FC 298, refd to. [para. 14].

Canada (Minister of Citizenship and Immigration) v. Salim, [2010] F.T.R. Uned. 645; 92 Imm. L.R.(3d) 196; 2010 FC 975, refd to. [para. 14].

Dedaj v. Canada (Minister of Citizenship and Immigration) (2010), 372 F.T.R. 61; 2010 FC 777, refd to. [para. 14].

Canada (Minister of Citizenship and Immigration) v. Cobos, [2010] F.T.R. Uned. 602; 92 Imm. L.R.(3d) 61; 2010 FC 903, refd to. [para. 14].

Canada (Minister of Citizenship and Immigration) v. Abou-Zahra, [2010] F.T.R. Uned. 708; 2010 FC 1073, refd to. [para. 14].

Alinaghizadeh v. Canada (Minister of Citizenship and Immigration) (2011), 386 F.T.R. 150; 2011 FC 332, refd to. [para. 14].

Abbas v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 83; 2011 FC 145, refd to. [para. 14].

Murphy v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 276; 98 Imm. L.R.(3d) 243; 2011 FC 482, refd to. [para. 14].

Martinez-Caro v. Canada (Minister of Citizenship and Immigration) (2011), 391 F.T.R. 138; 98 Imm. L.R.(3d) 288; 2011 FC 640, refd to. [para. 14].

VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 FC 25; 193 D.L.R.(4th) 357 (C.A.), refd to. [para. 16].

Canada (Minister of Citizenship and Immigration) v. Jeizan (2010), 386 F.T.R. 1; 2010 FC 323, refd to. [para. 18].

Seiffert v. Canada (Minister of Citizenship and Immigration) (2005), 277 F.T.R. 253; 2005 FC 1072, refd to. [para. 26].

Statutes Noticed:

Citizenship Act, R.S.C. 1985, c. C-29, sect. 5(1)(c) [para. 12].

Counsel:

Catherine Brisebois, for the applicant;

Patrick Claude Caron, for the respondent.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Montreal, Quebec, for the applicant;

Caron Avocats Senc, Montreal, Quebec, for the respondent.

This appeal was heard on December 5, 2011, at Montreal, Quebec, before Bédard, J., of the Federal Court who delivered the following decision on December 21, 2011.