Date: 20100527
Docket: T-1243-09
Citation: 2010 FC 565
Ottawa, Ontario,
May 27, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
SAJIDA
TANVEER
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant appeals from the decision
of a citizenship judge denying her application for citizenship on the basis
that there was insufficient evidence to establish that she had fulfilled the
residency requirement set out in the Citizenship Act, R.S.C. 1985, c.
C-29. At the conclusion of
the hearing of this appeal, I informed the parties that I would be allowing the
applicant’s appeal. These are my reasons.
Background
[2]
Sajida Tanveer is a
citizen of Pakistan. She became a permanent resident in Canada on July 29, 1997. Her son and husband are U.S. citizens. On March 23, 2007 she applied for Canadian
citizenship. On her application, she declared that she had been absent from
Canada in the relevant period for 358 days – one trip to the U.S. for 281 days
on March 23, 2003 and one trip to Pakistan for 77 days on February 3, 2006.
She was interviewed by the Citizenship Judge on April 7, 2009 and she provided
further documentation supporting her residency.
[3]
The Citizenship Judge denied Ms.
Tanveer’s application, stating:
… having
reviewed all of the documentation you submitted, having personally interviewed
you and for the reasons below, I am not satisfied, on a balance of
probabilities, that the information provided by you accurately reflects the
number of days that you were, in fact, physically present in Canada.
The reasons for reaching this conclusion may
be summarized as the following seven points:
(1)
the applicant’s passport did not show any entries into the U.S. in the
relevant period;
(2)
the applicant’s OHIP card, driver’s license and bank statements were
only passive indicators of residence;
(3)
the applicant had minimal income in the relevant tax years and negative
income in the 2006 tax year;
(4)
the applicant did not visit her doctor in the period November 26, 2004
to January 8, 2006;
(5)
the applicant’s son was diagnosed with Autism Spectrum Disorder, but he
only visited a doctor a few times after December 28, 2003;
(6)
the applicant did not provide a tenancy agreement for the period April
to October 2006, and did not provide proof of rent payment for the other
relevant periods; and
(7)
the applicant submitted a supporting document claiming that she had a
laser hair removal treatment at a time when she also claimed to be in Pakistan
and this receipt bore an address that the appellant never listed on her
application.
[4]
Referring to the
residency test set by Muldoon J. in Re Pourghasemi (1993), 62 F.T.R. 122
(T.D.), the Citizenship
Judge concluded “that on balance, all of the above does not satisfy me that you
have met the residency requirements under s. 5(1)(c) of the Act.” The Citizenship
Judge then considered whether a “favourable recommendation” should be made
under subsection 5(3) or 5(4) of the Act but determined that there were
no special circumstances that warranted such a recommendation.
Issue
[5]
The issue raised by
the applicant is whether the Citizenship Judge
erred in law because she ignored or misconstrued evidence when she reached the
conclusion that the applicant did not meet the residency requirement.
Analysis
[6]
Both parties are in
agreement on the appropriate standard of review. The question of whether a
citizenship judge erred in determining that an applicant did not meet the
residency requirement is reviewed on the reasonableness standard: Ghahremani
v. Canada (Minister of Citizenship and
Immigration), 2009 FC
411 at para. 19.
[7]
In citizenship
applications, the onus is on the applicant “to provide sufficient evidence to
establish that [she] met the residency requirement of the Act”: Chen v. Canada (Minister of Citizenship and
Immigration), 2008 FC
763. However, once this evidence is provided, either through testimony or
documentation, a citizenship judge must provide some explanation if that evidence
is rejected: Muhanna v. Canada (Citizenship and Immigration), 2008 FC 1289.
[8]
When the decision is
read as a whole, it is evident that the concern of the Citizenship Judge was
not with the sufficiency of evidence, but with whether the applicant’s evidence
was believable. Credibility may be of concern in citizenship applications
where the nature of the evidence, such as tenancy agreements, bank statements and
appointment records, does not provide incontrovertible proof that an individual
was present in Canada over a certain period of time, or even
that they were present at a specific point in time.
[9]
In this case, much of
the evidence was in the nature of passive indicators of residence in Canada and the Citizenship Judge was correct to test that evidence
against other evidence in the application and by challenging the applicant at
the interview. As will be seen, in my view, there was nothing in the
documentary evidence that directly contradicted the evidence of the applicant
as to her period of residence in Canada. Further, and most unfortunately, there
is no evidence that the Citizenship Judge questioned the applicant during the
interview on those aspects of the documentary evidence that she found
troubling.
[10]
I turn to examine the
seven aspects of the application that the Citizenship Judge did find troubling
and on which she rested her finding that the applicant was not credible in her
statement of the period of Canadian residency.
[11]
First, the absence of
U.S. entry visa stamps on the applicant’s
passport is not evidence that she was in Canada nor is it evidence that she was
outside of Canada. The applicant submitted her passport
to corroborate the declarations she made regarding when she was absent from Canada. Unlike Canada (Citizenship and Immigration) v.
Elzubair, 2010 FC 298,
where there were explicit discrepancies between the applicant’s application and
her passport, there is no apparent discrepancy between this applicant’s application
and her passport. The Citizenship Judge was technically correct that the
passport does not prove physical presence in Canada,
but by the same token, it does not cast doubt on any of the applicant’s
declarations or testimony.
[12]
Second, while the Citizenship
Judge is correct in stating that the applicant’s OHIP card, driver’s licence
and bank statements are all passive indicators of residence, this does not cast
doubt on the applicant’s declarations or testimony.
[13]
Third, low or
negative income in a relevant tax year alone does not cast doubt on the applicant’s
credibility. Low income may suggest an alternative source of financial support
either in Canada or in another country. The obvious question
to have asked is how the applicant met her living costs on such a low income.
If the Citizenship Judge had asked this question, the applicant’s answer, as
attested to in an affidavit filed in this proceeding, would have been that her
husband supports her. Such a response is hardly evidence of a lack of
residence.
[14]
Fourth, an absence of
visits to the doctor for a period of slightly more than one year may be nothing
more than an indicator of good health or a lack of a family doctor; it is not
evidence that she was not resident in Canada.
[15]
Fifth, the record
shows that the applicant’s son was not assessed for Autism Spectrum Disorder
until February 27, 2007, approximately one month before her application. His
lack of visits to a doctor before this date does not impeach the applicant’s
credibility to any significant degree. Further, it is not clear from the
record that an individual with Autism, even if he were diagnosed long before,
would be expected to visit a doctor frequently. The Citizenship Judge provided
no basis for her reliance on this apparent lack of doctor’s visits, and there
is nothing in the record that supports its relevance.
[16]
Sixth, the Citizenship
Judge also drew an erroneous negative credibility inference in stating that the
applicant failed to provide a tenancy agreement for the period of April to
October 2006. However, the Citizenship Judge was in error. The tenancy
agreement preceding this period did not have an end date. There is simply no
evidence that there was any gap in the agreements provided.
[17]
Seventh, the Citizenship
Judge also drew an erroneous negative credibility inference in stating that the
applicant submitted documentation (a laser hair removal treatment schedule)
that suggested she was being treated in Canada at a time that she had declared she was
in Pakistan. This document is a treatment schedule
that the applicant entered into with a laser treatment facility on November 8,
2005. When one reads the proposed treatment dates, the reference to “Mar. 13”
is clearly a reference to Mar. 13, 2007; counsel for the respondent admitted as
much at the hearing. The treatment schedule includes a chronological list with
treatments approximately every two months starting in November 2005. The dates
that include the year are as follows: Nov. 8, 05, Dec. 7, 05, Jan. 12, 06, May
30, 06, July 28, 06, Sept. 15, 06, and Nov. 22, 06. The entries “Mar. 13” and
“June 24” follow these entries. It is difficult to see how the Citizenship Judge
could mistake “Mar. 13” as Mar. 13, 2006, a time that the applicant stated she
was in Pakistan. Counsel for the respondent freely
admitted that she could offer no explanation for the view taken by the
Citizenship Judge.
[18]
The Citizenship Judge
also drew a negative inference from the fact that the address on this schedule
was an address on Erin Mills
Parkway, which was not an
address the applicant listed on the documentation submitted with the
application. The applicant, in the affidavit filed in support of this
proceeding attests that the street name was given by her as it intersected with
the street on which she lived but which she could not pronounce. The numerical
address and telephone number did correspond with the information on her
application. The conclusion reached by the Citizenship Judge in this and other
examples discussed reveals a significant flaw in the process she followed.
[19]
There are no obvious
notes in the record of the content of the interview the Citizenship Judge had
with the applicant. There is no indication in the record or the decision of
questions asked and answers given. If the Citizenship Judge had questions of
the sort discussed, then she ought to have raised those with the applicant at
the interview and recorded the responses. As it is, it is impossible to
determine what purpose the Citizenship Judge thought was served by the interview.
The applicant has filed an affidavit in which she offers explanations for most
if not all of the concerns expressed by the Citizenship Judge in her reasons.
The respondent pointed out repeatedly that this was information that was not
before the Citizenship Judge – implying that this Court should ignore it. While
it is true that the affidavit was not before the Citizenship Judge that begs the
question of why the relevant information contained within the affidavit was not
before her. It would have been before her if the Citizenship Judge had asked
the applicant questions directed to the areas that concerned her. There is
nothing in the application or documentation provided that is directly
contradictory and thus, absent questioning from the Citizenship Judge, the
applicant would have no way of knowing what the areas of concern were. Fairness,
in these circumstances, required that the Citizenship Judge put her concerns to
the applicant so that the applicant would have the opportunity to know the case
she had to meet. The onus in citizenship applications is on the applicant, but
the onus is not on the applicant to anticipate every concern that a citizenship
judge might have with the evidence submitted.
[20]
The respondent
submits that “[i]t was the cumulative reasons mentioned…above that led the
Citizenship Judge to determine that the Applicant had not discharged her onus
that she had been physically present in Canada for the requisite period”. Given the
irrelevant or erroneous nature of her reasons, it cannot be said that the Citizenship
Judge’s decision was reasonable. The cumulative reasons provided by the Citizenship
Judge for disbelieving the applicant’s assertion as to her residency do not
reasonably support her conclusion that the applicant failed to prove she met
the residency requirement in the Act. Accordingly, this appeal is allowed.
[21]
The applicant is
entitled to her costs. The applicant proposed an amount of $1,500 and the
respondent proposed $500 as reasonable. I agree with the respondent. There
was nothing particularly complex or challenging in this appeal and counsel was
familiar with the facts, having represented the applicant in the initial
application.
JUDGMENT
THIS COURT ORDERS that:
1. This appeal is allowed
and the applicant’s application for citizenship is referred to another citizenship
judge for determination; and
2. The applicant is awarded
her costs, inclusive of fees, disbursements and taxes, fixed in the amount of
$500.00.
“Russel W. Zinn”
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