As previously written in this space, the current Canadian Citizenship Act requires that a Canadian permanent resident have at least three years of residence in Canada in the four year period immediately before a citizenship application is made, among other things, to be eligible to apply for Canadian citizenship. However, “residence” is not defined in the current legislation. This lack of definition has led to multiple judicial tests of “residency”, one requiring physical presence (a quantitative test), the other looking at “constructive” residence (a qualitative test), which is sometimes referred to as the Koo test. In turn, that has created an unsatisfactory state in the law.

In 2010 proposed amendments to the Canadian Citizenship Act were introduced in Parliament, however they were not enacted as law.

In recent months there have been many Federal Court decisions which have examined this problem in the state of Canadian law, arising in the context of citizenship appeals. Below are some key highlights from some of the decisions. Uncertainty remains for those applicants for Canadian citizenship who have clearly established themselves and centralized their mode of living in Canada but who have less than 1,095 days of physical presence in Canada in the four years before the citizenship application. Will Parliament again seek to bring certainty?

El Ocla v. Canada (Citizenship and Immigration), 2011 FC 533 (CanLII) Decided May 9, 2011, The Honourable Justice Barnes

[15] In drafting ss 5(1)(c) of the Citizenship Act – a discrete requirement for residency upon which the conferral of citizenship rests – Parliament could not have intended that it be open to a variety of optional interpretations.

[16] … [T]he idea that statutory provisions such as the one applied here are open to a variety of “reasonable” interpretations would lead to administrative chaos and give rise to rampant inequity in a variety of decision-making contexts.

[18] Notwithstanding the considered views of my colleagues who have decided this issue differently, I remain of the view that there can only be one recognized test for residency under ss 5(1)(c) of the Citizenship Act.

[19] As I said in Ghaedi, above, a citizenship judge must apply the test for residency that was recognized in Re Koo, above, in cases where an applicant like Dr. El Ocla has not been physically present in Canada for 1095 days during the preceding four years but presents evidence that he has centralized his mode of living here. Where, as in this case, a citizenship judge applies only the physical presence test, he or she commits an error of law reviewable on the basis of correctness.

[20] It is simply not an acceptable or tolerable situation that some applicants with perhaps less deserving claims to Canadian citizenship than Dr. El Ocla are successful because they have the good fortune to appear before a citizenship judge who chooses to apply the qualitative test for residency. Although many have said that this is a problem that can best be solved by Parliament, that is a solution that has not been forthcoming for more than 30 years and the suggestion is of scant comfort to people like Dr. El Ocla who are the victims of a lack of legislative clarity and a state of judicial inconsistency that has existed for far too long.

• Read the full decision: El Ocla v. Canada (Citizenship and Immigration)

http://www.canlii.org/en/ca/fct/doc/2011/2011fc533/2011fc533.html

Khan v. Canada (Citizenship and Immigration), 2011 FC 215 (CanLII) Decided February 24, 2011, The Honourable Justice Scott

[6] Noting that the Act does not define the concept of “residence”, the Judge chose to adopt the strict “physical presence” test set out by Justice Muldoon in Pourghasemi (Re), [1993] FCJ No 232, under which an applicant must establish that he or she has been physically present in Canada for 1,095 days during the four (4) years immediately preceding the date of application. As the Applicant was 57 days short of this number, she did not meet the residency requirement set out in s 5(1)(c) of the Act.

[31] I am of the opinion that Takla and the more recent line of cases that require a Citizenship Judge to consider the Koo factors, once a threshold of residency is established (as referred to by Justice Harrington in paragraph 21 of Salim, above), should be applied to the present case. As I review the decision of the Judge and her underlying notes, I find her decision to be unreasonable, the Applicant having clearly established her residency. The Judge should then have considered whether, despite the shortfall in her physical presence, the Applicant met the time requirement for residency through the exceptional circumstances found at section 5.9 of the Manual.

[33] I am not convinced by the Respondent’s argument that Takla, above has done nothing to counter the Lam, above, “choice of tests” ratio, nor by the Respondent’s statement that a Federal Court of Appeal decision would be necessary since Section 14(6) of the Citizenship Act precludes any appeal of a decision of this Court to the Federal Court of Appeal. It, therefore, seems that any change in the jurisprudence must originate in this Court, in the manner referred to by Justice Barnes, in which a divergence in the jurisprudence will occur and judges will choose to follow one or the other until one becomes more dominant.

• Read the full decision: Khan v. Canada (Citizenship and Immigration)

http://www.canlii.org/en/ca/fct/doc/2011/2011fc215/2011fc215.html

Alinaghizadeh v. Canada (Citizenship and Immigration), 2011 FC 332 (CanLII) Decided March 18, 2011, The Honourable Justice Gauthier

[26] In Takla, as has been done by many judges for more than a decade, Justice Robert Mainville (as he then was) expressed the Court’s frustration that the use of different tests, to assess whether or not a permanent resident meets the residence requirement set out in the Act, creates what another Judge described as an intolerable situation. In effect, the privilege sought (citizenship) may be granted to one person while denied to another in identical circumstances, depending on which of two or three “reasonable” interpretations of the Act is chosen 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 his view, 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 to ensure 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 is simply 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 the Citizenship Act (Bill C-37) was tabled on June 10, 2010. In its current version, this Bill makes it absolutely clear that a permanent resident must be physically present in Canada during the period set out in paragraph 5(1)(c).[6] Is this a confirmation that this is what Parliament had intended all along?

• Read the full decision: Alinaghizadeh v. Canada (Citizenship and Immigration)

http://www.canlii.org/en/ca/fct/doc/2011/2011fc332/2011fc332.html

Hao v. Canada (Citizenship and Immigration), 2011 FC 46 (CanLII) Decided January 28, 2011, The Honourable Justice Mosley

[1] The issue in this case is whether, in considering an application for Canadian citizenship, the Citizenship Judge erred in applying one of several tests for determining the residency requirements that have been previously approved by this Court. Recently, some judges of this Court have adopted the view that just one of these tests should prevail. This would, undoubtedly, avoid inconsistency in the administration of the statute. Should an appeal from the Citizenship Judge’s decision be granted when the judge chose to apply one test over another and the decision is not otherwise unreasonable?

[50] I agree that it would be preferable to have consistency in the test applied to determine residency but several judges of this Court, including myself, have found that the physical presence interpretation is appropriate on a plain reading of the statute. And this Court, for over 11 years, has deferred to decisions by citizenship judges to choose that interpretation over the alternative as a reasonable exercise of their discretion. While the inconsistent application of the law is unfortunate, it can not be said that every example of that inconsistency in this context is unreasonable. If the situation is “scandalous” as Justice Muldoon suggested many years ago in Harry, it remains for Parliament to correct the problem.

• Read the full decision: Hao v. Canada (Citizenship and Immigration)

http://www.canlii.org/en/ca/fct/doc/2011/2011fc46/2011fc46.html

Ghaedi v. Canada (Citizenship and Immigration), 2011 FC 85 (CanLII) Decided January 25, 2011, The Honourable Justice Barnes

[10] … The inevitable consequence of not having a single test for residency is, however, that similar citizenship cases can be decided differently based upon which one of the recognized legal tests for residency is applied. …

[15] … I agree with counsel for Mr. Ghaedi that the views expressed by Justice O’Reilly and Justice Mainville are compelling and justify departing from the view expressed both in Lam, above, and the cases which have applied it, including several of my own decisions. In my view, the benefits of harmonizing the approach to residency outweigh the concerns expressed in Lam, above, about deferring to the judgment of the Citizenship Court. Deference is not a juridical value that outweighs the need for adjudicative consistency and the predictability of judicial outcomes.

[16] Counsel for Mr. Ghaedi argued that I am bound to follow Takla, above, and the more recent decisions of my judicial colleagues. I do not agree that this is an issue for which judicial comity applies. Notwithstanding the views of any particular judge, there will continue to be two lines of divergent authority on this issue and others may be quite properly disposed to follow Lam, above. Needless to say, if this Court does not over time adopt a common view on this issue, it is unlikely that the Citizenship Court will do so and the only available resolution in that event will be legislative.

•  Read the full decision: http: Ghaedi v. Canada (Citizenship and Immigration)

http://www.canlii.org/en/ca/fct/doc/2011/2011fc85/2011fc85.html

Robbie Sheffman is pleased to announce that his band The Reverbs will be playing at the Justice Education Society Dinner/Dance being held at the Victoria Empress Crystal Ballroom on Saturday April 30, 2011. Black tie optional, cocktails at 6:30 pm (No Host Bar), dinner at 7:30 pm followed by dancing.

The Justice Education Society is a non-profit organization that provides a broad range of legal education resources to immigrant communities (and others) as part of its goal to help people living in British Columbia understand the justice system and how to go about resolving their legal issues. The JES provides a valuable resource to communities who might otherwise lack access to justice and I hope you’ll consider coming out to support the organization (and to have a wonderful evening).

Tickets are $150 (with $50 tax receipt) or $100 with no tax receipt. All proceeds go to support the JES, Vancouver Island branch.

For tickets please contact:

Roxanne P. Helme
Green & Helme
1161 Fort Street
Victoria, British Columbia
V8V 3K9
Tel: (250) 361-9600
Fax: (250) 361-9181

On April 1, 2011 new Immigration and Refugee Protection Regulations came into force bringing in a more onerous Labour Market Opinion (“LMO”) and work permit application program and a harsh enforcement regime that heavily penalizes employers who do not honour their agreements with temporary foreign workers (TFWs).

When making LMO and work permit applications, employers and foreign nationals now face a more comprehensive assessment of the “genuineness” of the job offer, including whether, and among other things:

• The employer is actively engaged in the business;
• The job offer is consistent with needs of the employer;
• The employer is reasonably able to fulfill the terms of the job offer; and
• The employer has complied with federal/provincial/territorial laws regulating employment in the province/territory where the worker will be employed.

In addition, government officials will be assessing whether or not employers respected their agreements with TFWs in the two year period before any LMO or work permit application is made. If it is found that an employer failed to provide substantially the same wages, working conditions and occupation as set out in previous job offers, and did not rectify the problem or cannot justify the discrepancy based on certain criteria, then the employer faces harsh penalties, such as:

• The refusal of work permit applications for any foreign national offered a job by that employer;
• Ineligibility to hire a temporary foreign worker for 2 years; and
• The employer’s name displayed on CIC’s Temporary Foreign Worker Program’s Ineligible Employers website.

Possible breaches include:

• Paying TFWs less than promised
• Providing TFWs with poor working conditions or giving them different occupations from those agreed upon in the original offer of employment
• Providing inadequate accommodations for some TFWs
• Third-party agents charging fees to workers, rather than employers, in contravention of existing provincial/territorial legislation.

There is also a very harsh penalty on TFWs who enter into an agreement, or an extension of an existing agreement, with an employer who is not eligible to use the TFW Program as described above. In that case, the TFW would lose his or her temporary status in Canada. TFWs therefore need to consult the CIC Ineligible Employers website to make sure they do not run afoul of this requirement.

The new regulations also bring a “4 years in, 4 years out” provision under which the duration of cumulative years a TFW can work in Canada is capped at 4 years. Once the cap is reached it must be followed by a period of at least 4 years when the TFW will not be authorized to work in Canada. The calculation does not include periods of time worked in Canada prior to April 1, 2011. There are also some very important exceptions where this new regulation does not apply in certain circumstances.

• Regulatory changes that came into force on April 1, 2011, including more detailed information for employers and TFWs (click to read)

I recently presented a webinar on the new regulations to the BC Human Resources Management Association. If your business hires foreign workers or is contemplating accessing the TFW Program and you would like to arrange for a similar presentation please contact me for information on scheduling and speaker’s fees.

The BCHRMA presentation included:

• Review of the basics on hiring foreign nationals in Canada
• Review of the highlights of the Canada-BC Agreement Annex F: Temporary Foreign Workers and potential good news for BC employers
• Review of the new enforcement regime that came into force April 1, 2011 under the Immigrant and Refugee Protection Regulations.

On December 3, 2010 I had the pleasure of meeting with the Honourable Gary Lunn in a small gathering of stakeholders to discuss the federal government’s proposed legislation to combat human smuggling.  Minister Lunn was keen to hear the views of the participants in the group, with the intention of communicating the same to the Minister of Citizenship, Immigration and Multiculturalism, the Honourable Jason Kenney.