Date : 20050815
Docket: T-2068-04
Citation: 2005 FC 1106
Toronto, Ontario, August 15, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
SELWA CHEMAOU EL FIHRI
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an appeal under subsection 14(5) of the Citizenship Act, R.S.C. 1985,
c. C-29, (the Act), against a decision dated September 30, 2004, by a Citizenship Judge (the Judge) who denied the citizenship application filed by Selwa Chemaou El Fihri (the applicant) on the basis that she did not meet the requirements of paragraphs 5(1)(c) and 5(1)(e) of the Act.
RELEVANT FACTS
[2] The applicant was born in Salé in Morocco on May 17, 1981, and was admitted to Canada as a permanent resident on July 14, 1995.
[3] On June 28, 2001, she, her father, her mother and her brother filed a citizenship application. Even though all of her family was approved, the applicant was denied on the basis of "doubts regarding residency".
[4] On April 30, 2003, the applicant filed a second citizenship application. On August 10, 2004, she met the Judge for an interview. After that interview, the Judge denied her application on the grounds that the applicant had not, in the four years preceding her application, accumulated at least three years of residence in Canada (5(1)(c) of the Act) and that she did not have has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship (5(1)(e) of the Act).
ISSUE
[5] Did the Citizenship Judge err in denying the applicant's citizenship application on the basis that she did not satisfy the requirements of paragraphs 5(1)(c) and 5(1)(e) of the Act?
ANALYSIS
[6] Even though there has very recently been a difference of opinion on the standard of review applicable to these cases, in my opinion the decision of a citizenship judge must be examined under the standard of reasonableness simpliciter and not of correctness, as was the case before. As Shore J. stated in Morales v. Canada (Minister of Citizenship and Immigration), 2005 FC 778, [2005] F.C.J. No. 982 at paragraph 6, the residency requirement is a determination of fact and of law and must therefore be reviewed according to a more flexible standard, in view of the specialized experience and knowledge of the citizenship judges:
The standard of review in citizenship appeals is the standard of reasonableness simpliciter because the question of whether a person has met the residency requirement under the Act is a question of mixed fact and law and citizenship judges are owed some deference by virtue of their special degree of knowledge and experience (Canada (Minister of Citizenship and Immigration) v. Fu, [2004] F.C.J. No. 88 (F.C.) (QL), Canada (Minister of Citizenship and Immigration) v. Chen, [2004] F.C.J. No. 1040 (F.C.) (QL), Canada (Minister of Citizenship and Immigration) v. Chang, [2003] F.C.J. No. 1871 (F.C.) (QL)).
[7] In section 5, the Act indicates the requirements that the applicant must meet in order to obtain Canadian citizenship. Paragraph 5(1)(c) indicates that one of those requirements is to accumulate at least three years of residence in Canada. Given that "residence" is not defined in the Act, the case law provides that one of several different interpretations may be used. As De Montigny J. stated very recently at paragraphs 15 and 16 of Xu v. Canada (Minister of Citizenship and Immigration), 2005 FC 700, [2005] F.C.J. No. 868:
Parliament made it clear that an applicant for citizenship must have accumulated "at least" three years of residence within the four years immediately preceding the date of his application. As for the notion of "residence", it is not specifically defined under s. 2(1) of the Citizenship Act. But it is certainly fair to say that the allowance for one year's absence during the four-year period under s. 5(1)(c) of the Act creates a strong inference that the presence in Canada during the other three years must be substantial. As Mr. Justice Muldoon stated in Re Pourghasemi, [1993] F.C.J. No. 232:
It is clear that the purpose of para. 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsory presented with the everyday opportunity to become, 'Canadianized'.
.. . .
So those who throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves. It is not something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else.
It is true that this Court has interpreted the test for residency in a number of different ways. As a result, it has also been determined that a Citizenship Judge is entitled to adopt any of these various approaches in determining whether a particular applicant has satisfied the residency requirements of the Act (Canada v. Mindich, [1999] F.C.J. No. 978; Akan v. M.C.I., [1999] F.C.J. No. 991; Lam v. M.C.I., [1999] F.C.J. No. 410).
[TRANSLATION]
Under paragraph 5(1)(c) of the Citizenship Act, the would-be citizen must have within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada.
(Page 7 of the applicant's record - Judge's decision dated September 30, 2004, at paragraph 2)
The applicant, then 14, entered Canada and was granted landed status on July 14, 1995. She applied for Canadian citizenship on April 30, 2003.
This grants her 1460 material days in Canada. She admits to being absent, or out of Canada, on 225 days. This would grant her 1235 days of physical presence in Canada.
(Page 30 of the applicant's record - Written notes of the Citizenship Judge at paragraphs 1 and 2)
[9] It is therefore obvious that the applicant had to provide her evidence to establish that she had been in Canada for 1460 days before the date of her application, which was April 30, 2003. The Judge therefore examined and questioned the applicant regarding that period:
The applicant, though aged 14 when she arrived in Canada, never attended high school or college here. Did she return home to Morocco to continue her education in 1995? She claims no.
Rather, she said she did not want to come to Canada and, therefore, did nothing - absolutely nothing - until September 17, 2000 - some five years and two months later. This placed her some 17 months into the material time period.
Moreover, she has nothing to submit to show for those five years and two months. No school, no work, no memberships in any community, cultural or social associations, groups, clubs and organizations. No letters from friends - nothing. Absolutely nothing. And, all beginning at age 14.
It was only in the summer/fall of 2000 that the applicant showed signs of Canadian life. . . .
The applicant has submitted evidence of residence commencing September, 2000 - not before. This is some 17 months into her material time period. There is nothing before.
(Page 30 of the applicant's record - Written notes of the Citizenship Judge at paragraphs 3 to 6 and 9)
[10] The burden of proof of establishing the residence requirements was on the applicant's shoulders. In Maharatnam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 405 at paragraph 5, Gibson J. states:
I cannot accept the argument advanced by counsel. I am satisfied that the onus is on an applicant for Canadian citizenship to satisfy a Citizenship Judge that he or she fulfills the requirements of the Act or warrants an exercise of discretion by the Citizenship Judge, pursuant to subsection 15(1).
[11] In this case, the evidence filed by the applicant did not establish her physical presence in Canada until September 2000. Therefore, the Judge did not err in any way in asking himself where the applicant really was between April 1999 and September 2000.
[12] The Judge also points out in his notes that the test to be applied is that of evidence on a balance of probabilities (Malevsky v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1148, [2002] F.C.J. No. 1554 at paragraph 7) and the applicant did not succeed in establishing the residency requirements on a balance of probabilities:
The onus or burden of proof in residence cases lies with the applicant - not the government.
. . .
Because of her inability to demonstrate on the balance of probabilities that she was indeed in Canada for three of the four years of her material time period, she has failed to meet the residence requirements of the Act.
(Page 30 of the applicant's record - Written notes of the Citizenship Judge at paragraphs 8 and 10)
[13] I would also point out that even though the Judge properly examined the four-year period between April 1999 and April 2003, it was also opportune for him to take into consideration the events before the period relevant to the citizenship application.
The respondent wrote on the residence questionnaire that he rents lodgings in Taiwan and West Malaysia as of February 8, 1998. He also indicated that he resides, as of the same date, at 20 Queen Elizabeth Blvd in Toronto, which he claims to own. However, according to the documents in the record, this is the address of the school where the respondent works (see pages 115 and 139 of the Applicant's Record). This period of time post-dates the application for citizenship and is therefore not relevant to the residency requirement. However, in my view, this oddity further diminishes the respondent's credibility.
(Canada (Minister of Citizenship and Immigration) v. Kuo, [1999] F.C.J. No. 967 at paragraph 10)
[14] The applicant also submits that the Judge erred in determining that she had not established that she met the requirement provided under paragraph 5(1)(e) of the Act. I would first point out that section 15 of the Citizenship Regulations, 1993, SOR/93-246, states that to have an adequate knowledge of Canada, the applicant must have a general understanding of the right to vote in federal, provincial and municipal elections and the right to run for elected office.
[15] In the Judge's notes, it states that:
At her hearing the applicant failed her oral knowledge examination. She incorrectly answered two mandatory questions. The first question dealt with who could vote in a federal election. The second asked who could be a candidate in a federal election.
(Page 31 of the applicant's record - Written notes by the Citizenship Judge at paragraph 11.)
[16] It is therefore clear that the applicant was not able to correctly answer two mandatory questions asked by the Judge. Even though the applicant alleges that she should have been given the test in writing, nothing in the Act or in the Regulations would indicate that that is the case. Quite to the contrary, Hussain v. Canada (Minister of Citizenship and Immigration, [1999] F.C.J. No. 1130, Lemieux J. states:
From the material before me, it is clear that a citizenship judge's questions (when the written test option is not given) are based on the information contained in self-instructional material approved by the Minister and presented to applicants for grant of citizenship. Applicants for Canadian citizenship who are to be interviewed receive notice of the purpose of the interview so that they can review the self-instructional material prescribed by the Minister in preparation for the interview. On the record available to me, I am satisfied the applicant did not receive the standard notice letter; the February 2, 1998 letter, which he did receive, did not identify the purpose of the interview. I also find that the applicant had reasonable grounds to think the February 20, 1998 interview would be about his absences.
[17] In this case, the applicant received all of the documents necessary to prepare for the interview and the Judge even indicates this in the second page of his decision. Further, in a letter sent to the applicant on July 28, 2004, it stated:
[TRANSLATION]
The Citizenship Judge requires more information to be able to make a decision on your citizenship application. You are therefore summoned to an interview so that the Judge may determine if your application meets all of the prescribed conditions. The Judge may ask you questions in order to determine if you have sufficient knowledge of French or English and sufficient knowledge of Canada.
[18] Therefore, the applicant cannot claim that she should have received a written examination and that the Judge should not have asked her the questions verbally. Furthermore, even though the applicant submits that she did not have access to the questionnaire used by the Judge, she did not do anything to contest Citizenship and Immigration Canada's decision refusing to disclose the list.
[19] In a letter sent on December 6, 2004, an officer of Citizenship and Immigration Canada indicated that she could not disclose the list of questions asked in order to protect their confidentiality. The disclosure could have the effect of undermining the integrity of the process of assessing the knowledge of future candidates, giving an unfair advantage to some citizenship applicants.
[20] However, the Federal Court Rules, 1998, provides a procedure for such cases:
| 318. (1) Within 20 days after service of a request under rule 317, the tribunal shall transmit
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318. (1) Dans les 20 jours suivant la signification de la demande de transmission visée à la règle 317, l'office fédéral transmet :
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| (a) a certified copy of the requested material to the Registry and to the party making the request; or
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a) au greffe et à la partie qui en a fait la demande une copie certifiée conforme des documents en cause;
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| (b) where the material cannot be reproduced, the original material to the Registry.
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b) au greffe les documents qui ne se prêtent pas à la reproduction et les éléments matériels en cause.
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| (2) Where a tribunal or party objects to a request under rule 317, the tribunal or the party shall inform all parties and the Administrator, in writing, of the reasons for the objection.
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(2) Si l'office fédéral ou une partie s'opposent à la demande de transmission, ils informent par écrit toutes les parties et l'administrateur des motifs de leur opposition.
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| (3) The Court may give directions to the parties and to a tribunal as to the procedure for making submissions with respect to an objection under subsection (2).
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(3) La Cour peut donner aux parties et à l'office fédéral des directives sur la façon de procéder pour présenter des observations au sujet d'une opposition à la demande de transmission.
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| (4) The Court may, after hearing submissions with respect to an objection under subsection (2), order that a certified copy, or the original, of all or part of the material requested be forwarded to the Registry.
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(4) La Cour peut, après avoir entendu les observations sur l'opposition, ordonner qu'une copie certifiée conforme ou l'original des documents ou que les éléments matériels soient transmis, en totalité ou en partie, au greffe.
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[21] The applicant could have filed a motion to have the list of questions filed at Registry under seal for example, as ordered by Prothonotary Morneau in Alfonso v. Canada (Minister of Citizenship and Immigration), 2001 FCT 923, [2001] F.C.J. No. 1296:
After reviewing this motion by the plaintiff and the objection made by the defendant and the mis-en-cause, I consider that the plaintiff's motion should be allowed in the following manner.
Within ten days of the instant order the Bureau of Canadian Citizenship shall send the Registry of this Court under seal an annotated list of the questions used by Judge Springate in his interview with the plaintiff. The Bureau shall inform counsel for the plaintiff when this is filed.
Counsel for the parties may consult the content of this sealed envelope in the Registry of this Court.
[22] The applicant cannot now complain about the refusal to disclose, in view of the fact that she never objected to it before. On that point, I refer to the decision Abdollahi-Ghane v. Canada (Attorney General), 2004 FC 741, [2004] F.C.J. No. 930 at paragraph 21:
The respondent notes that it was the citizenship tribunal that refused to disclose the questionnaire when it filed the Tribunal Record in this Court. Because the applicant never objected to the refusal of the citizenship tribunal, she cannot now submit that the judge erred in failing to explain the questions put to the applicant. The Court agrees with the respondent, but nevertheless find that the judge erred in his decision that the applicant did not satisfy paragraph 5(1)(e).
[23] I already expressed at the hearing my misgivings regarding the procedure followed by the Citizenship Court in disclosing documents, specifically the questionnaire to which the applicant responded. However, even though I consider that measure somewhat too restrictive, it is nevertheless there and to get the documents in question, the applicant had no choice but to address the Court, which she chose not to do.
[24] Applying the standard of reasonableness simpliciter, it is my opinion that the Judge did not make any error in his analysis or in his application of the Act. Further, even if I were to apply the most stringent standard of correctness, I am unable to find a reviewable error in the Judge's decision.
ORDER
THE COURT ORDERS that:
1. The application for judicial review be dismissed;
2. No question for certification.
"Pierre Blais"
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
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