Date: 20050531
Docket: T-1059-04
Citation: 2005 FC 776
Ottawa, Ontario, this 31st day of May, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
MUHAMMAD NAEEM SHAKOOR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an appeal under section 21 of the Federal Courts Act, R.S.C. 1985, c. F-7 and subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29, of the decision dated March 30, 2004 of a citizenship judge wherein the applicant's application for Canadian citizenship was denied on the basis that he had not met the residency requirements under paragraph 5(1)(c) of the Citizenship Act, supra.
[2] The applicant seeks an order:
1. for a writ of certiorari quashing the decision of the citizenship judge rejecting the application for citizenship of the applicant;
2. declaring that the applicant meet the requirements of subsection 5(1) of the Citizenship Act, supra;
3. of a writ of mandamus directing the respondent to grant citizenship to the applicant;
4. allowing the appeal; and
5. such further and other relief as counsel may advise and this Honourable Court may allow.
Background
[3] Muhammad Naeem Shakoor (the "applicant") was born in Pakistan in 1968 and became a permanent resident of Canada on July 22, 1999. He applied for Canadian citizenship on February 14, 2003.
[4] On his citizenship application, the applicant indicated that in the fours years immediately preceding the date of his application he had been absent from Canada a total of 165 days as follows:
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Family Visit and
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[5] The applicant claimed that therefore, at the time of submitting his application for citizenship, he had accumulated 1,295 days of residence in Canada.
[6] The applicant's citizenship application indicated that his residence for most of his time in Canada was in North York, Ontario.
[7] The applicant stated that he commenced working for a U.S. company (True Technology) in May 2000, but worked from Canada. In January 2001, the company opened a branch office in Toronto.
[8] The applicant stated that during the time between landing and the date of his citizenship application he had settled in Canada. He had a residence in Canada, had worked at various jobs in Canada, started his own consulting business, up-graded his education in Canada, filed tax returns as required, did all his banking in Canada, had friends here, and the only travel outside of Canada was for personal or business reasons.
[9] On May 11, 2002, the applicant was married in Pakistan. In August 2002, his wife joined him in the United States on a dependant visa, first staying with her sisters in Detroit, then later joined him when he had a place ready.
[10] The applicant and his wife had a child in the fall of 2003.
[11] The applicant stated that after February 2003 he began working for a company called Agere. In November 2003, he began spending more time in the United States as a result of the amount of time he lost and the humiliation he experienced at the border, caused by the requirements for fingerprinting and background checks each time he entered or left the United States. He stated that his plan was to wait for his citizenship to be finalized, and then bring his wife and child to Canada.
Reasons of the Citizenship Judge
[12] The citizenship judge found that the applicant had not proven that he had been in Canada the number of days he claimed to have been, and denied the application for citizenship. The citizenship judge found that due to a number of inconsistencies between what the applicant claimed on his application, and his responses during the interview, it was not possible to know exactly how many days the applicant had in fact been absent. In order to then determine whether or not the applicant met the residency requirements, the citizenship judge used the six part test set out in Re Koo (1992), 19 IMM. L.R. (2d). The reasons, at pages 11 and 12 of the record show her analysis as follows:
1. Was the individual physically present in Canada for a long period prior to recent absences that occurred immediately before the application for citizenship?
It is difficult to answer since so many different stories were presented during the hearing, many of which came in conflict with what was submitted in your application.
2. Where are the applicant's immediate family and dependants (and extended family) resident?
Toronto: Cousin
Pakistan: Parents, sisters, brothers
United States: In-laws, wife and infant son, the latter two which were admitted to only near the end of the hearing.
3. Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
New Jersey, your wife and infant son seem to be your focal point. It is apparent you want Canadian citizenship and one can conclude, from your statements, your travel pattern, and the credibility gap in what you stated and submitted in writing, that this is your only reason for returning to Canada.
4. What is the extent of the physical absences - if an applicant is only a few days short of the 1,095 days total it is easier to find deemed residence than if those absences are extensive?
The inconsistencies in your story at the hearing and what you wrote, make the number of days you stated you were in Canada to be in doubt. By law, it is up to the applicant to prove the number is valid. You have not done this.
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 temporary employment abroad?
It is clearly not temporary (see #3 and #4 above).
6. What is the quality of the connection with Canada? is it more substantial than that which exists with any other country?
See above, particularly #3.
[13] The issues as framed by the applicant are:
1. Does the respondent have any evidence before the Court on which to rely in connection with this case?
2. Did the citizenship judge make an error of law in her assessment of the applicant's residence in Canada?
3. Was the interview conducted in such a way so as to give rise to a failure of appropriate natural justice, and as such, an error of law?
[14] The issue as framed by the respondent is:
Did the applicant demonstrate that the citizenship judge erred in her conclusion that he did not satisfy the requirements of paragraph 5(1)(c) of the Citizenship Act, supra?
Applicant's Submissions
The applicant submitted that the appropriate standard of review of a decision made by a citizenship judge is correctness (see Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 and Lam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1017).
The applicant submitted that as the respondent has not, in accordance with Rule 307 of the Federal Court Rules, 1998, served or filed an affidavit, he has not submitted any evidence upon which he can rely. As such, the facts as established through the affidavits and other materials submitted by the applicant should be accepted, and further that the legal arguments which flow therefrom should also be accepted (see Sandhu v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1398).
The applicant submitted that the citizenship judge misunderstood and/or misapplied the facts of the case with regard to residency. The applicant had acquired the necessary residence requirements for citizenship, both in terms of physical presence, as well as in terms of his ordinary mode of residence. From the date of landing to the date of application, the applicant had already accumulated 1,295 days of residence, and already met the residence requirement. The citizenship judge ignored that or failed to consider that.
[18] Further, there were clear indicia of his settlement in Canada. The applicant submitted that he was well-established in Canada, had taken all "ordinary" steps to live in Canada, after striving to make Canada his home, and leaving Pakistan. He up-graded his education here, he resided here, he banked here, and most importantly, he was earning his livelihood here.
[19] The applicant submitted that it was only a practical issue with regard to his livelihood that caused him to be away from Canada for a period of time, and that was only after he had already met his requirements and submitted his application. Nevertheless, he always had the intention of continuing his residence as soon as possible; indeed never abandoning that residence.
[20] In addition, or in the alternative, in Re Papadogiorgakis, [1978] 2 F.C. 208 at 214, the Court found that temporary absences from Canada would not preclude an applicant from being a Canadian resident, so long as it was shown that the applicant "in mind and in fact settles into, or maintains, or centralizes his ordinary mode of living with its accessories in social relations, interest and conveniences" in Canada.
[21] The applicant submitted that in addition to the fact that the applicant had met the physical presence requirement, he showed clear indicia of his settlement in Canada, as noted in the applicant's affidavit and the tribunal record.
[22] The applicant submitted that the principle that physical presence is only one of the many factors that need to be considered when making a decision under paragraph 5(1)(c) can be found in Re Koo, supra, where Reed J. stated:
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 living.
[23] The applicant submitted that he has shown that during the relevant period, Canada was where he "normally" lived.
[24] Issue 3
[25] The applicant submitted that the citizenship judge acted in a harsh way toward him during the interview. As a result, there is reason to believe that the interview was not properly conducted, and that the rationale of the citizenship judge is suspect. Further, the process, already intimidating for the applicant, became even more so, and this was in breach of the requirements of natural justice.
[26] The applicant submitted that, as with other tribunals, it should be presumed that his statements are true (see Maldonado v. Canada (Minister of Citizenship and Immigration), [1980] 2 F.C. 302).
The respondent submitted that this Court has held that a citizenship judge's finding of fact, including whether or not an applicant is credible will be accorded deference (see Canada (Minister of Citizenship and Immigration) v. Hung, [1998] F.C.J. No. 1927). The appropriate standard of review is reasonableness simpliciter (see Canada (Minister of Citizenship and Immigration) v. Chen, 2004 FC 848).
The respondent submitted that it relies on the certified tribunal record produced in response to a request under Rule 317 of the Federal Court Rules, 1998,supra, as evidence to support the respondent's submissions. The citizenship judge is a judge of an independent tribunal. It is both unnecessary and unwarranted to expect that the citizenship judge would swear an affidavit in this proceeding before this Court.
The respondent submitted that paragraph 5(1)(c) of the Citizenship Act, supra, provides that an applicant may be absent from Canada for one year during the four year period preceding the date of the application. However, Parliament has specifically prescribed that an applicant must be resident in Canada for at least three years.
[30] The respondent submitted that the word "residence" is not specifically defined under subsection 2(1) of the Citizenship Act, supra. Nevertheless, the allowance for one year's absence during the four year period under paragraph 5(1)(c) of the Citizenship Act, supra, creates a strong inference that the presence in Canada during the other three years must be substantial (see Re Hui (1994), 24 Imm L.R. (2d) 8). The purpose of the residence requirement is to ensure that an applicant for citizenship can become familiar with Canada and become integrated into Canadian Society (see Re Pourghasemi,(1993) 19 Imm. L.R. (2d) 259 (F.C.T.D.)).
[31] The respondent submitted that an applicant for citizenship must demonstrate by objective facts, first, that they have initially established a residence of their own in Canada at least three years preceding their application and, second, that they have maintained their established residence throughout that time. In order to meet the residence requirements of paragraph 5(1)(c), an applicant must first show that residence has been established. Only once residence has been established can an applicant move on to the second part of the equation, that being whether the residence was maintained (see Ahmed v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J.No. 1415).
[32] The respondent submitted that the applicant bares the onus of providing credible evidence to demonstrate that he satisfies the requirements of subsection 5(1)(c) of the Citizenship Act, supra. The citizenship judge found that the applicant provided contradictory statements concerning the amount of time he was in the United States. He provided other evasive evidence concerning his wife who resides in the United States and the number of times he visited the United States for either business or family visits. The citizenship judge was entitled to conclude that the applicant had not satisfied his onus of providing reliable evidence concerning his whereabouts in the four years preceding his application for citizenship.
Relevant Statutory Provisions
[33] Section 5 of the Citizenship Act, supra states:
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:
(i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and
(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;
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5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois:
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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:
(i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent,
(ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent;
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The standard of review to be applied is reasonableness simpliciter, but without significant deference to the decision of the citizenship judge (see Canada (Minister of Citizenship and Immigration) v. Chang, [2003] F.C.J. No. 1871).
[35] I propose to deal first with Issue 2.
[36] Issue 2
Did the citizenship judge make an error of law in her assessment of the applicant's residence in Canada?
It is a requirement of the Citizenship Act, supra, that an applicant for citizenship must have, in the four years immediately preceding the date of his or her application for citizenship, accumulated at least three years (1,095 days) of residence in Canada. In the present case, the applicant claimed to have spent 1,295 days in Canada in the relevant period prior to the date of his application. It is only the days spent outside of Canada prior to the date of the applicant's application for citizenship which was February 14, 2003, which can be considered in assessing the applicant's application for citizenship.
[37] In the present case, the citizenship judge stated in part at item 11 in the facts portion of the reasons:
You stated that after February 2003, which is after you applied for Canadian Citizenship, you were in the United States for six months, then you sated, in August 2002, you stated that you "went to the United States for two months" to see wife and her whole family who lives in Detroit". Then, you stated, in August 2002, you went to the United States "two times, went only one or two days". After these contradictory statements you ended by saying, "so now I spent six months in the United States".
[38] Unlike the usual appeal against a finding that an applicant has not met the residency requirements, in this case the applicant is claiming to exceed the minimum requirement by 200 days. In her analysis, in answering the first question under the Re Koo, supra, test, the citizenship judge stated:
Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
It is difficult to answer since so many different stories were presented during the hearing, many of which conflict with what was submitted in your application
Under item (d) of the Re Koo, supra, test, the citizenship judge also stated:
The inconsistencies in your story at the hearing and what you wrote, make the number of days you stated you were in Canada to be in doubt. By law it is up to the applicant to prove the number is valid. You have not done this.
[39] From a perusal of the reasons, it cannot be determined whether the citizenship judge was referring to the extensive absences from Canada after February 14, 2003, the date of the applicant's application, or just the absences prior to the date of his application. I cannot tell whether the citizenship judge took into account the absences after the date of the application in arriving at a conclusion on the applicant's application. If she did, it would constitute a reviewable error.
[40] Accordingly, the appeal of the citizenship judge's decision must be allowed, as there is a live issue as to the actual number of days the applicant was absent from Canada. I will refer the matter back to a different citizenship judge for redetermination.
[41] I need not deal with the other issues raised by the applicant.
[42] IT IS ORDERED that the appeal of the applicant is allowed and the matter is referred back to a different citizenship judge for redetermination.
Ottawa, Ontario
May 31, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1059-04
STYLE OF CAUSE: MUHAMMAD NAEEM SHAKOOR
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 24, 2005
REASONS FOR ORDER AND ORDER OF: O'KEEFE J.
DATED: May 31, 2005
APPEARANCES:
Benjamin A. Kranc
SOLICITORS OF RECORD:
Kranc & Associates
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General
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