Parliament and Federal Court fiddle while conflicting residence tests burn

Lawyers have known for years the unfairness of the three disparate tests applied by citizenship judges in deciding whether an applicant meets the residency test for citizenship under section 5 of the Citizenship Act. The inequity of the situation was recently highlighted in a decision handed down by Chief Justice Crampton of the Federal Court. In Huang v Minister of Citizenship and Immigration, 2013 FC 576, the Chief Justice said, “This case is yet another example of why something needs to be done to address the unacceptable state of affairs concerning the test for citizenship in this country.” His remarks are slightly more temperate than the comments of Justice Muldoon, who, as early as January, 1998, in Re Ten, 1998 CanLII 7296 (FC), said the situation created “a scandalous uncertitude in the law.” The irony of Justice Muldoon’s comment is that he helped create the incertitude in the law.

The scandalous situation involves the interpretation of “residence” in paragraph 5(1)(c) of the Citizenship Act. That provision requires that a citizenship applicant have three years of residence in Canada within the four years before applying. The term is not defined in the law, so it was left to Federal Court judges, on appeals from citizenship judges, to determine what the word meant. In 1978, in Re Papadogiorgakis, [1978] 2 F.C. 208, 88 D.L. R. (3d) 243, then Chief Justice Thurlow decided residence meant where an applicant had centralized his mode of living. In 1992, Justice Reed decided in Re Koo, [1993] 1 FC 286, that residence was where an applicant regularly, normally or customarily lived. Finally, in 1993 in Re Pourghasemi (1993) 62 F.T.R. 122, Justice Muldoon, certain his interpretation was correct and the others were, as he later described,  “ignoring the law,” decided residence meant physical presence. Comity, or unity of judgement in the Federal Court on the issue, has since yet to be found.

From that point onward citizenship judges have had three different standards to choose from. As new judges are appointed, they fall into one school of interpretation or another and any applicant with less than three years physical residence is left with the randomness of which judge they appear in front of. Relief through Federal Court was uncertain, depending on which school of thought the judge hearing an appeal sat in.

Normally an appeal court could sort out conflicting decisions. However, the Federal Court has the last word on the matter as the Citizenship Act expressly prevents an appeal from that court. So long as judges of the Federal Court hold conflicting opinions on the issue, applicants before a citizenship judge face unequal treatment under the law, depending on which judge decides their fate. Hence Chief Justice Crampton’s plea that Parliament should amend the Citizenship Act to expressly define residence. However, the government has attempted twice to change the law, in 1998 and 2010, without success.

Beside an amendment by Parliament, Chief Justice Crampton suggested that a citizenship judge bring a reference to the Federal Court under subsection 18.3(1) of the Federal Courts Act. That could be appealed to the Federal Court of Appeal, which could finally settle the different interpretations in the Federal Court that have lasted for the past 20 years. I would be surprised if a citizenship judge took the initiative to start such a reference.

I suggest it may be possible for an applicant to seek a remedy by means of judicial review through a provincial superior court or possibly the Federal Court, following the Supreme Court of Canada decision in Kourtessis v. MNR, [1993] 2 SCR 53. The court upheld a judicial review of a search warrant, from which the Criminal Code allowed no appeal, where a Charter right is at stake and no other effective remedy is available for vindicating it. Citizenship applicants are denied due process under section 7 of the Charter of Rights and Freedoms  by the unequal treatment of law due to conflicting decisions. An appeal to Federal Court under the Citizenship Act does not provide an adequate remedy. If the review court accepts jurisdiction, an appeal could lie to a higher court that would settle the issue once and for all. Of course, all of this depends on finding an applicant willing and able to take their case through the courts. It is an point worth giving further consideration.

Government gives second chance to take citizenship test

Citizenship and Immigration Minister Jason Kenney announced Monday changes to test rules for citizenship applications in hopes of reducing the growing backlog of applicants awaiting approval. Under the changes, applicants who had failed the required knowledge test will be given a second opportunity to write the exam, instead of awaiting a retest before a citizenship judge.

Under the Citizenship Act applicants for citizenship must pass a language test and a knowledge test. The tests are administered by a citizenship officer. If failed, applicants have to redo the tests before a citizenship judge. The Minister also announced that it will approve family members on their own merit. Previously, when one member failed a test, all the other family members would have to wait for the one member to pass the test before allowing them to continue on the process. The next step after passing the tests is an oath ceremony before a citizenship judge, at which time the applicants are formally granted Canadian citizenship.

According to the National Post, there is currently a backlog of 350,000 citizenship applications, with waits up to 29 months for a final hearing before a citizenship judge in Montreal and Vancouver.  The government processes up to 200,000 citizenship applications a year. Under new procedures, applicants who fail the knowledge test will be informed of the decision immediately and given a chance to rewrite the exam within four to eight weeks. The new procedure will apply retroactively to persons who have already failed the test.

The policy of treating family members separately is a belated recognition of the legal fact that under the Citizenship Act, each spouse has their own right to a decision that is not dependent upon the other spouse. Treating them together was an administrative practice and an unnecessary hurdle, inconsistent with the law. Prior to the change, an applicant could write to separate their application, usually providing a compelling reason why they should be treated separately. That will no longer be necessary and it avoids the burden of applicants applying to Federal Court for an order to compel a separate decision.

Part of the increased delay in processing applications has been due to the government’s crackdown on fraudulent applications by applicants who do not meet the residency requirement under the citizenship rules. In the past year the government has sent out detailed residency questionnaires to more than 20,000 applicants, to assess whether or not they meet the qualifications. The residency test is not settled in law and there are many factors, beside physical presence in Canada, that a citizenship judge may consider before deciding if an applicant be granted citizenship. Failing approval from a citizenship judge, an applicant may appeal the refusal to the Federal Court.

I provide advice or assistance with completing a citizenship application, particularly if you are concerned about meeting residency requirements. Early assistance with an application may save time and money, and avoid future court applications to determine your right to obtain citizenship.

William Macintosh is an immigration and citizenship lawyer, with experience since 1984. He may be contacted at 778-714-8787 or by e-mail at wjmacintosh@hotmail.com.

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