Date: 20050805
Docket: T-2227-04
Citation: 2005 FC 1072
Vancouver, British Columbia, Friday the 5th day of August, 2005
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
HERIBERT WALTHER SEIFFERT
Applicant
and
PETRA SEIFFERT (Wife) T-2226-04
Applicant
and
MARK-OLIVER MICHAEL SEIFFERT (Son) T-2224-04
Applicant
and
BENJAMIN PETER SEIFFERT (Son) T-2225-04
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present Application is a consolidated appeal of decisions rendered by a Citizenship Judge, dated October 19 and 20, 2004, wherein Mr. Seiffert, named in these reasons as the "Applicant", and the three members of his family, all citizens of Germany, were found not to meet the residency requirements of s.5(1)(c) of the Citizenship Act, R.S. 1985, c. C (the "Act").
[2] The Applicant is a businessman who first came to Canada with his wife and two sons in 1982, and bought a residence in Delta, British Columbia. His family's European businesses were founded in 1969, and, since 1991, the Applicant and his wife have founded four Canadian companies in Delta, and others in Calgary, Alberta. A second Canadian residence was purchased in 1997.
[3] A brief review of the lifestyle of the members of the Seiffert family discloses that, for work and educational purposes, they are extensive international travellers. The Applicant and his wife run their many businesses inside and outside of Canada, including some 13 offices in Europe and one in the United States; the offices are located in Nuremberg, Berlin, Salzburg, Wien, Basel, Chicago and Vancouver. They also own two residential properties in Germany. To prepare them for running the family's international business, the two sons have received university education from the University of British Colombia,, the University of Hamburg, Germany, and Western Illinois University. Nevertheless, the family has also spent considerable time traveling within Canada, and has established a social life in Vancouver by being yacht club members and avid boaters which has allowed them to explore the Pacific coastline of British Columbia.
[4] The Applicant and the members of this family became landed immigrants in 1998, and on May 28, 2003, they all applied for Canadian citizenship. With respect to the residency requirement they had to meet, s.5(1)(c) of the Act provides as follows:
| 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:
[...] |
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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 :
[...]
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At the time they applied for citizenship, each member of the family was well short of the 1095 days of residency in Canada expected under this provision; the Applicant by 772 days, his wife by 823 days, the eldest son (Mark-Oliver) by 787 days, and the youngest son by 893 days.
[5] It is agreed by Counsel for the Applicant and the Respondent that there are two questions for determination. First, was the analysis provided by the Citizenship Judge in his decision with respect to each member of the family deficient in such a way as to constitute reviewable error? And second, was there a breach of natural justice with respect to the oral hearing accorded to the Applicant? It is agreed that, if the answer to either question is "yes", the appeal should be granted for all Applicants.
A. The first question for determination: deficient critical analysis?
[6] In a given case, a citizenship judge is free to select between three tests decided by this Court, being the stringent test found by Justice Muldoon in Re Pourghasemi, [1993] F.C.J. No. 232 (T.D.), the flexible test found by Justice Thurlow in Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.), and the test stated by Justice Reed in Re Koo, [1992] F.C.J. No. 1107 (T.D.) which is an adjunct to the decision in Re Papadogiorgakis. In the present case, the Citizenship Judge decided to accept the more flexible approach, and, accordingly, was required to have regard to Justice Thurlow's and Justice Reed's decisions.
[7] In Re Papadogiorgakis, at paragraph 16, Justice Thurlow states as follows:
A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study.__The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there.__The conclusion may be reached, as well, even though the absence may be more or less lengthy.__It is also enhanced if he returns there frequently when the opportunity to do so arises.__It is, as Rand J. appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question.".
In Re Koo at paragraph 10, Justice Reed states as follows:
10. The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence. Questions that can be asked which assist in such a determination are:
(1) was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
(2) where are the applicant's immediate family and dependents (and extended family) resident?
(3) does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
(4) 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?
(5) is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted employment abroad?
(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
[8] In the present case, the Citizenship Judge attempted to apply the decision in Re Koo, and, as a result, the Applicant argues that it was incumbent on him to address each of the factors suggested in the decision, which, it is argued, he failed to do. In support of this argument, the Applicant cites Canada (M.C.I.) v. Mueller, [2005] F.C.J. No. 266, in which Justice Snider granted a citizenship appeal on the ground that there were shortcomings in the citizenship judge's analysis of the Koo factors. The Respondent argues that the Koo factors need not be specifically addressed, but it is enough if it can be discerned from the Citizenship Judge's decision that the factors were in his or her mind when the decision was rendered.
[9] First, I agree with Justice Snider's conclusion that a citizenship appeal can be granted for failure to provide a proper analysis of the evidence. I consider this requirement of a citizenship judge to be a fundamental part of the duty of fairness. Second, I accept the proposition advanced by the Respondent that there is no hard and fast rule that important factors have to addressed in the manner and order which Justice Reed suggests, but, nevertheless, the decision must leave no doubt that all important relevant factors were addressed in reaching the decision. Support for this conclusion comes from the "Citizenship Policy Manual (CP2) on Decision-Making" which sets out detailed expectations to be followed by citizenship judges. In part, the Manual reads as follows, with particular emphasis placed on features 1.27 and 1.28:
1.3. Concepts
When citizenship judges make a decision they must be sure that:
· they have the legal authority to make the decision; and
· the decision follows the administrative law principles of natural justice and procedural fairness.
[...]
1.6. Appeal
The Act authorizes an appeal of the decision of a citizenship judge to the Federal Court of Canada - Trial Division. This appeal is not de novo, meaning that only the evidence examined by the citizenship judge is admissible in court. When the Federal Court hears an appeal, it:
· examines the merits of the decision;
· determines whether it was the correct decision.
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Natural justice and procedural fairness
1.10. Decision-maker
It is an administrative law principle that, in the absence of a legislative provision to the contrary, the decision-maker is master of the decision-making process. Depending on the nature of the decision, a fairly high degree of procedural fairness is required. A decision likely to affect the rights of an individual (for example, deportation), requires more procedural guarantees than a decision that does not affect an individual's status.
1.11. Method can be more important than decision
In administrative law, the way a decision is made is often more important than the decision itself. Consequently, the decision-maker (the citizenship judge) always has a duty to act fairly and in accordance with the principles of natural justice.
1.12. Basic elements of natural justice
The duty to act fairly includes rights and obligations that must be observed.
The two basic elements of natural justice are
· the right to be heard, and
· impartiality.
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1.18. All the evidence must be heard
The judge must take all pertinent information and evidence into account, no matter how extensive. The judge must assess the applicant's credibility and may require additional documentation to support certain statements, such as a claim of residence in Canada during the four years preceding the application. If the evidence is rejected because of a lack of credibility, the decision must give the reasons.
[...]
1.24. Types of bias
The following are examples of situations that may show bias:
· commenting on a question before the hearing;
· attitudes revealing prejudices: the application must be studied impartially and without regard to what the decision-maker considers to be a good citizen;
· prior involvement in the case;
· a relationship between the decision-maker and one of the parties;
· marked hostility toward one of the parties;
· possibility of financial benefit from the outcome of the proceedings.
1.25. Deal with each case on individual basis
Examine each case on an individual basis. Circumstances that are bias in one case may not be bias in another case.
Content of the decision
1.26. Give reasons for decision
When the judge does not approve an application, the judgment:
· tells the applicant that the application is not approved;
· gives full reasons for the decision;
· presents the reasons for the decision so the applicant or the Minister of Citizenship and Immigration can decide whether to appeal the decision.
1.27. What to include in justifying the decision
The decision must include:
· the facts;
· an analysis of the facts; and
· the deductions from the analysis.
1.28. Conclusion not enough
Giving a conclusion and repeating the criteria set out in the Citizenship Act is not enough. The arguments and the evidence must be discussed. The judge must then show why the decision was made, and state the evidence supporting the decision.
[Emphasis added]
(Court Registry File in the present case)
Therefore, I find that a most important part of a decision rendered by a citizenship judge is a statement of why any stated conclusion is reached; while this might be difficult, I find it is, nevertheless, absolutely necessary to accord fairness to an applicant.
[10] In the present case, in each of the decisions rendered, the Citizenship Judge stated facts found with respect to each member of the family, but by way of analysis of these facts, made the same statement in each decision rendered as follows:
In determining whether you have demonstrated that Canada is the country in which you have centralized your mode of existence, I have considered those questions posed by Justice Reed in rendering the decision Re: KOO (1992), 19 Imm. L.R. (2d) 1, 59 F.T.R. 27, (1993) 1 F.C. 286 (T.D.).
[...]
The primary questions to be dealt with are, the degree to which you have centralized your life in Canada and the degree to which the time you have spent in Canada will have allowed you to become Canadian by living and working with Canadians, and becoming part of Canadian society.
Your time in Canada does not demonstrate that you have actually spent enough time in this country to fulfil the intent of the Citizenship Act. You have not centralized your life in this country. You absences appear to be structural. That is, they appear to be a pattern of life rather than a temporary phenomenon. They are not related to a humanitarian emergency, the temporary assignment of overseas duties to an employee of a Canadian company, a unique educational program, or assignment by the Canadian government to overseas duties.
[...]
The intent of the Citizenship Act is clear. You have not sufficiently centralized your life in Canada, living among Canadians, and becoming part of Canadian society.
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The Parliament of Canada allowed a four year period within which an applicant could establish the three years of residency. This was done in order to allow for some absences during that four year period. In RE: KOO(Bearing File no. T-20-92) Justice B. Reed comments upon the intention of Parliament in setting this period:
The requirement of three years 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 1095 days was contemplated as a minimum.
Pursuant to subsection 14(3) of the Citizenship Act, you are therefore, advised that, for the above reasons, your application for citizenship is not approved.
(See Applicant's Tribunal Record, pp. 143-145)
[11] Given the facts of the present case, I find that the Citizenship Judge's decision is deficient of required critical analysis.
[12] In my opinion, the unique situation of the Applicant and his family members required very careful attention. It is very obvious from the decisions that the Citizenship Judge's thinking was dominated by the lengthy absences of the Applicants from Canada. The Citizenship Judge characterized the absences as "structural" and, as a direct consequence, found that the Applicants had not centralized their lives in Canada. Thus, the Citizenship Judge came to a finding of fact, and then provided a conclusion upon which the Applicants' citizenship applications were refused. The essential part missing in this process of reasoning is the analysis as to why the absences lead to the conclusion that the Applicants had not centralized their lives in Canada.
[13] In my opinion, the Citizenship Judge's focus on the number of days of absence prevented him from considering the wealth of evidence on the record from which he could have concluded that, despite the significant absences, given the Applicants' unique lifestyle of constantly being on the move for business reasons, and also the creation of their family and social life in Canada, the Applicants had no more substantial connection with any other country in the world than Canada. Performing the missing step in the analysis could have resulted in a completely different decision.
[14] Therefore, I find that the answer to the first question presently under consideration is, yes, the decisions under review are deficient in such a way as to constitute reviewable error.
B. The second question for determination: breach of natural justice?
[15] I agree with Counsel for the Applicant that, while an applicant for citizenship does not have a right to an interview with a citizenship judge, if it is granted, it must be conducted fairly. The Applicant's evidence of what occurred in the present case on this issue is uncontradicted:
...I had expected this interview would allow my family and I an opportunity to fully explain our life spent in Canada over 22 years. However, the Citizenship Judge spent approximately only 10 minutes speaking to me and only briefly spoke to my other family members - my wife, Petra and my two sons, Mark-Oliver and Benjamin. He did not discuss or review with me or my family any of the material we had submitted in support of our citizenship applications. He indicated before even starting [the] interview that he had already decided that he could not grant us citizenship. I felt shocked because I wondered why we had been convoked for an interview if he was going to make the decision before even hearing from us. He did not give me any chance to explain anything because he made it clear that he had already made up his mind.
(Applicant's Affidavit, para. 2)
[16] As each case turns on its own merits, I find that no precedent will help me decide whether a denial of justice occurred in the present case. The question to be answered is whether the Applicant, both for himself and the members of his family, had a reasonable opportunity during the interview to persuade the Citizenship Judge that the complex and extensive evidence before him warranted a positive citizenship decision. I have no hesitation in saying that the Applicant was not provided with this opportunity.
[17] It is very clear from the decision rendered, that the written material did not impress the Citizenship Judge sufficiently to give a positive determination. In such circumstances, it was critically important for the Citizenship Judge to give the Applicant a solid chance to use his powers of persuasion to change his mind. I agree with Counsel for the Applicant that the Citizenship Judge closed the door to this opportunity. Therefore, on the facts of the present case, I find that the failure to accord this meaningful opportunity to be heard is a denial of natural justice.
[18] Therefore, I find that the answer to the second question presently under consideration is, yes, there was a breach of natural justice with respect to the oral hearing accorded to the Applicant.
C. Conclusion
[19] Given the errors found in the decisions under review, I grant the appeal on each of the Applications under consideration.
[20] As to the proper disposition of the Applications as a result, Counsel for the Respondent agrees that my appeal powers allow me to provide an opinion on the residency question that was before the Citizenship Judge with respect to each member of the Seiffert family. Indeed, during the course of the oral hearing, I was urged to do so by Counsel for the Applicants. I find that the interests of justice require me to accede to this request.
[21] I see no purpose in sending the Applicants back for redetermination before another citizenship judge. In my opinion, the expenditure of time and resources in doing so would be inordinate. I am also mindful of the unwarranted emotional strain that further litigation would most certainly cause to the Applicants, which I believe is unnecessary, because, on my evaluation, they have a strong evidentiary basis for a positive citizenship determination.
[22] In my opinion, given the early establishment of the residences and businesses in British Columbia, there is ample evidence on the record for me to conclude that residency in Canada had been established well before the citizenship applications were filed. In addition, even having regard to the fact that the Applicants are well short of the 1095 days of residence required by the Act, on the flexible approach adopted by application of Re
Papadogiorgakis and Re Koo, there is ample evidence for me to conclude that, throughout the four-year period immediately preceding their citizenship applications, the Applicants possessed a sincere intention to, and made active efforts to, maintain their residence in Canada.
[23] It is true that, in the key four years the Applicants' absences from Canada were structural, but given the demands of their business interests, I find they are understandable as necessary. Therefore, I do not give weight to the evidence of the absences. Of primary importance, it is clear on the evidence that, even having regard to the Applicants' absences from Canada traveling around the world for business and education purposes, there is no adherence to any other country in the world but Canada as home. Therefore, I find that the Applicants had centralized their lives in Canada before making their applications.
[24] Therefore, on this basis, I find that each of the Applicants has met the residency requirements of s.5(1)(c) of the Act. As a result, in my opinion, each member of the Seiffert family is entitled to Canadian citizenship.
ORDER
The appeal is allowed in each of the Applications herein.
Costs are awarded to each of the Applicants against the Respondent.
(Sgd.) "Douglas R. Campbell"
Judge
Vancouver, British Columbia
August 5, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2227-04 (and consolidated files with dockets T-2224-04, T-2225-04 and T-2226-04)
STYLE OF CAUSE: Heribert Walther Seiffert v. Minister of Citizenship and Immigration (and consolidated files in Mark-Oliver Michael Seiffert v. MCI, Benjamin Peter Seiffert v. MCI, and Petra Seiffert v. MCI)
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 4, 2005
REASONS FOR ORDER AND ORDER : Campbell J.
APPEARANCES:
Lorne Waldman FOR APPLICANTS
Catherine A. Sas FOR APPLICANTS
Jonathan Shapiro FOR RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associated FOR APPLICANTS
Barristers & Solicitors
Toronto, Ontario
Immigration Law Centre FOR APPLICANTS
Vancouver, British Columbia
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Vancouver, British Columbia