Date: 20100316
Docket: T-1052-09
Citation: 2010 FC 298
Ottawa, Ontario, March 16, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
AREEJ
HUSSEIN ELZUBAIR
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an appeal by the
Minister of Citizenship and Immigration, pursuant to s. 14(5) of the Citizenship
Act, R.S.C. 1985, c. C-29, and s. 21 of the Federal Courts Act, of a
decision by a Citizenship Judge to grant the respondent’s citizenship
application.
[2]
In light of the
respondent’s apparent misrepresentation regarding the frequency and length of
her absences from Canada during the relevant residency period, the
Citizenship Judge’s brief reasons insufficiently justified the grant of
citizenship. This appeal is allowed.
Background
[3]
Areej Hussein Elzubair is a citizen of Sudan. She arrived in Canada and became a permanent resident on May 28, 2004. On June 3, 2008, she
applied for citizenship. An applicant must show compliance with the residency
obligation set out in subsection 5(1)(c) of the Citizenship Act which
provides that the applicant must have accumulated at least 1095 days
“residence in Canada” within the previous four years. This permits an
applicant not to have residence in Canada for 365 days in
that period.
[4]
The respondent used the applicant’s
online residence calculator. She listed two absences from Canada for
trips to Sudan and Ireland totaling 311 days within the four-year period preceding
the date of her application.
[5]
The applicant requested supporting
documentation from the respondent including her passport, tax information,
rental agreements, and the completion of an additional residence questionnaire.
[6]
On the second residence questionnaire
that the respondent provided she claimed that she was absent from Canada on
three separate occasions, rather than two as previously claimed, for a period
totaling 359 days, rather than 311 days. The absences were for the previously
mentioned trips to Sudan and Ireland as well as for an additional trip to Sudan.
[7]
The respondent’s passport that she
provided strongly suggested additional absences from Canada,
including a previously undisclosed trip to Ireland.
[8]
The respondent was called for a hearing
before a citizenship judge, but she failed to appear because she was not in Canada. Her
hearing was rescheduled and she returned to Canada to attend the hearing.
[9]
After the hearing, the Citizenship
Judge approved the respondent’s application for citizenship, concluding that
she had been absent from Canada for a total of 312 days in the relevant period. The
reasons supporting that finding and the grant of citizenship are brief:
After
reviewing the applicants [sic] documents and the information shared with
me at the hearing on March 25th /09, I am satisfied that the
applicant meets the residence criteria.
[10]
It is from this decision that the Minister
appeals.
Issues
[11]
The Minister raises the following
issues:
1. What is the standard of review for an appeal of a
residency determination made pursuant to s. 5(1)(c) of the Citizenship Act;
and
2. Whether the citizenship judge erred in finding the respondent
to have met the residency requirement under s. 5(1)(c) of the Citizenship
Act?
Analysis
[12]
In light of the
recent decision of this Court regarding the standard of review on a citizenship
appeal in Canada (Minister of Citizenship and Immigration) v. Takla, 2009 FC 1120, the first issue was
not pursued by the Minister. Takla holds that the reasonableness
standard of review applies to a citizenship judge’s determination of compliance
with the residence requirement, whereas issues of jurisdiction, procedural
fairness and natural justice are to be reviewed against the correctness
standard.
[13]
At paras. 46-49
of Takla, Justice
Mainville convincingly supported his finding that there should only be one test
for residence, despite this Court’s jurisprudence that suggests otherwise. I
concur with his view. Therefore, the approach to be followed by citizenship
judges is to first make a threshold assessment as to whether residence was
established at all: Goudimenko v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 447, and then, if it was established, to assess,
following the test described in Koo (Re), [1993] 1 F.C. 286 (T.D.),
whether that residence is sufficient to satisfy the obligation described in subsection
5(1)(c) the Citizenship Act.
[14]
When a citizenship
judge finds that an applicant was physically present in Canada for at least 1095 days, the required minimum period, then
residence is proven, and resort to the more contextual Koo test is
unnecessary. The Koo test need only be relied on where the applicant
has been resident in Canada, but has been physically present in Canada for less than 1095 days. In that situation,
citizenship judges must apply the Koo test to determine whether the
applicant was resident in Canada, even though not physically present here.
[15]
In this case, the Citizenship
Judge concluded that the applicant was physically present in Canada for 1148 days during the relevant period, so it was
unnecessary to assess her residency according to the Koo test. Presumably
the Citizenship Judge first determined that the respondent had established
residency in Canada, although that is not stated in the
reasons he provided.
[16]
The deficiency with the
Citizenship Judge’s decision was not his application of the appropriate test,
but his complete failure to explain how he reached his conclusion regarding the
respondent’s physical presence in Canada.
[17]
The Citizenship Judge
was faced with an applicant who had submitted two residency questionnaires that
indicated absences from Canada that differed by 48 days, as well as a passport
that suggested further previously undisclosed absences from Canada. The
documents provided by the respondent to the Citizenship Judge are prima
facie evidence of a misrepresentation by the respondent and raise serious
questions as to whether she satisfied the residency requirement.
[18]
The Citizenship Judge
stated that his review of these documents “and the information shared with him”
by the respondent led him to the conclusion that the residency requirement was
satisfied. The Citizenship Judge did not state what information was shared
with him or how this information overcame the serious issues raised by the
respondent’s documentary evidence. In this regard, the Citizenship Judge’s
decision was insufficiently justified and is therefore unreasonable.
[19]
In Canada (Minister of Citizenship and Immigration) v. Dhaliwal, 2008 FC 797, at para. 26, Frenette D. J.
stated:
The privilege of acquiring Canadian citizenship is just that: a
privilege. One must be truthful in their application for such a privilege.
Moreover, misrepresentation by an applicant for citizenship puts into question
their credibility and has the potential to impact the weight given to their
evidence submitted in support of their application.
[20]
Noting the requirement that
applicants for Canadian citizenship be honest, Justice Lemieux recently upheld a refusal to grant citizenship
in a case where the applicant satisfied the residency requirement, but had committed
a serious misrepresentation in order to expedite his application: Raslan v. Canada (Minister of Citizenship and Immigration), 2010
FC 189.
[21]
It is part of the role of a citizenship
judge to ensure that citizenship is not obtained through misrepresentation. If
citizenship is granted in circumstances where it appears on the face of the
record that there may have been misrepresentation, the citizenship judge must explain
and justify why citizenship was granted; otherwise, the very value of Canadian
citizenship is debased.
[22]
As it stands, there are minimal repercussions
for misrepresentation on citizenship applications. Such actions do not render
a permanent resident inadmissible to Canada, and subject to removal proceedings. The foreign
national can simply re-apply for citizenship. This may be contrasted with the provisions
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 which
provide that if a permanent resident has committed a misrepresentation he or
she can be found inadmissible and removed from Canada or, in other circumstances,
be unable to sponsor previously undisclosed family members to enter Canada. It may
be argued that a misrepresentation on an application for citizenship ought to
be visited with similarly harsh consequences.
[23]
As the law stands, there are no
such consequences and the respondent is at liberty to re-apply for Canadian
citizenship.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this appeal is allowed and the decision of
the Citizenship Judge granting the respondent Canadian citizenship is quashed.
“Russel W. Zinn”
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