Date: 20100517
Docket: T-1972-09
Citation: 2010 FC 538
Ottawa, Ontario, May 17, 2010
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
SOMIA
DACHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant filed the present appeal pursuant to subsection 14(5) of the Citizenship
Act, R.S.C. 1985, c. C-29 (the Act) with regard to a decision rendered by a
citizenship judge on November 13, 2009, denying her application for
citizenship.
[2]
The
applicant appeals this decision on the grounds that the citizenship judge
failed to provide adequate reasons and that the citizenship judge made
erroneous and unreasonable findings of fact. For the reasons that follow,
the appeal is dismissed.
[3]
The
applicant left Syria and landed in Canada with her
husband and two minor children on January 12, 2002. That same day she was
granted permanent resident status as a member of the investor class. On
December 12, 2005, approximately four years later, the applicant and her
children applied for citizenship.
[4]
By
letter dated November 13, 2009, the applicant was informed that, despite having
been requested to submit additional documentation, she did not submit
satisfactory documentation to establish that she had been residing in Canada for a minimum of three
years within the four years immediately preceding her application, as required
by the Act. Accordingly, her application was denied.
[5]
Paragraph
5(1)(c) of the Act sets out the residence requirements that must be met before
citizenship will be granted in Canada:
|
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;
…
|
5. (1) Le ministre attribue la citoyenneté à toute
personne qui, à la fois :
…
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;
…
|
[6]
At
the time the applicant applied for citizenship (December 12, 2005), she had
been a permanent resident for 1429 days. Broken down into days, paragraph
5(1)(c) of the Act requires the applicant to have resided in Canada for a
minimum of 1095 days in the preceding four years from the date of her
citizenship application (the relevant period). On her application, the
applicant indicated that she had been absent from Canada on seven different
occasions during the relevant period, which amounted to an absence from Canada for approximately 324
days. Upon review by a citizenship officer, a mathematical error was discovered
and it is now accepted that the information provided by the applicant in her
citizenship application suggests that she was away from Canada for a total of 332
days, which means that she was physically present in Canada for 1097 days, that is,
two days above the minimum requirement.
[7]
During
her interview with a citizenship officer on November 2, 2006, the applicant was
unable to provide the passport she used from the time she landed in Canada (January 12, 2002) to
February 2004. According to the applicant, this passport, along with those of
her children, was stolen in February 2004.
[8]
At
the request of the citizenship officer, the applicant submitted the following
supplemental documentation to establish her presence in Canada: a residence
questionnaire; a letter from her employer confirming that she had been employed
at a grocery store during the period between March 2003 and April 2006; deeds
to the various properties she owns in the Montreal area; her Notice of Assessments
for 2003 and 2005; her children’s report cards from 2002 to 2006; bank account
and credit card statements; home phone, cell phone, utility and internet bills;
an employment contract from a live-in-caregiver the applicant had hired in
2005; a copy of her passport and those of her children, issued June 7, 2004; a
police report indicating that her previous passport was stolen; and finally, a
partial photocopy of the stolen passport.
[9]
Given
that the officer was unable to confirm her travels during the first two years
of her stay in Canada, the applicant’s file was referred to a citizenship
judge, who held a hearing on August 17, 2009, and determined that did not meet
the residence criteria as provided by paragraph 5(1)(c) of the Act.
ANALYSIS
A. Procedural Fairness
[10]
It
should be noted that the applicant’s counsel neglected to argue this issue at
the hearing. In her written submissions, however, the applicant submits that
Citizenship and Immigration Canada (CIC) failed to provide her with reasons
since the citizenship judge’s notes to the Minister of Citizenship and
Immigration (the Minister) were never given to her despite the fact that her
lawyer requested them by fax on November 24, 2009. According to the applicant,
even if the notes to the Minister are considered reasons for the citizenship
judge’s decision, neither them nor the letter dated November 13, 2009,
constitute sufficient reasons to satisfy the duty of procedural fairness.
[11]
The
letter sent to the applicant stated little more than the documentation the
applicant provided failed to establish her presence in Canada for the statutorily
mandated minimum time. According to the notes written to the Minister, however,
the citizenship judge concluded that on a balance of probabilities the
applicant had not demonstrated that she was in Canada for 1095 days during the relevant period
because:
1. her passport contained
stamps during the relevant period that were not listed by the applicant in her
application form;
2. the children’s report
cards indicated that they missed a total of 52 days in the first two terms of
the 2003-2004 and 2004-2005 school years, which is a longer absence than noted
by the applicant during the same periods;
3. while the applicant
filed a letter from her employer at a grocery store stating that she worked
from April 2003 to 2006, she failed to file any pay stubs in support of this
contention;
4. the Notice of
Assessments with regard to the applicant’s tax returns do not correspond to
each year the applicant claims to have been in Canada
5. there were a number of
transactions on the applicant’s bank statements for purchases from a pharmacy
in Canada during the period in
which the applicant admits to being overseas; and
6. on the new passports
issued to the applicant and her children on June 7, 2004, there is a note on
page 8 providing that as of June 7, 2004, the applicant and her children are
duly registered with the Syrian consulate in compliance with the regulation
which provides that each Syrian living abroad for longer than three months must
register at the Syrian consulate in the country they reside.
[12]
VIA
Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 at
paragraph 21‑22 provides that for reasons to be sufficient they must
set out: the decision-maker’s findings of fact; the principal evidence upon
which the findings are based; the decision-maker’s reasoning process, the major
points in issue; and the main relevant factors. After reviewing the notes to
the Minister, it is clear that they meet this standard.
[13]
While
I believe the applicant correctly argues that the notes to the Minister cannot
form part of the reasons since they were never provided to her, I believe this
error may be overlooked since it had no material effect on the decision or the
applicant’s resolve to appeal it (Nagulesan v. Canada (Minister of
Citizenship and Immigration), 2004 CF 1382 at
paragraph 17). Furthermore, given the conclusion that the notes to the
Minister constitute adequate reasons and the fact that the applicant is now
well aware of these reasons, this is not a sound basis upon which to return the
decision.
B. The Citizenship Judge’s Decision
[14]
Where
the Court is asked to review a citizenship judge’s determination of whether an
applicant meets the residence requirements stipulated in the Act, the Court is
essentially reviewing a question of mixed fact and law; the Court looks to the
citizenship judge’s application of the legal test to the facts. As such, the
appropriate standard of review is that of reasonableness (Chowdhury v.
Canada (Minister of Citizenship and Immigration), 2009 FC 709 at
paragraphs 24-28; Canada (Minister of Citizenship and Immigration) v.
Zhou,
2008 FC 939 at paragraph 7).
[15]
The
standard of reasonableness is concerned with the justification, transparency
and intelligibility of the decision in addition to whether the decision falls
within the range of possible outcomes having regard to the facts and the law (Dunsmuir
v. New
Brunswick,
2008 SCC 9 at paragraph 47).
[16]
There
is no definition of “residence” in the Act and the existing jurisprudence
provides for three distinct general tests, two contextual tests and one strict
one, which if properly applied by the citizenship judge, would be accepted by
this Court (Lam v. Canada (Minister of Citizenship and Immigration)
(1999), 164 F.T.R. 177, [1999] F.C.J. No. 410 at paragraph 14 (F.C.T.D.)
(QL) and So v. Canada (Minister of Citizenship and
Immigration), 2001 FCT
733 at paragraph 29)).
[17]
A
detailed explanation of the contextual tests can be found in Re Papadogiorgakis, [1978] 2 F.C. 208
at paragraphs 15 and 16 (F.C.T.D.) and Koo (Re), [1993] 1 F.C. 286
(T.D.). The
strict test flows from the decision in Pourghasemi (Re) (1993), 62 F.T.R.122, [1993] F.C.J. No. 232 (F.C.T.D.) (QL) and provides that a
person resides in the location where they are physically present. Therefore,
for the purposes of paragraph 5(1)(c) of the Act, an applicant for citizenship
must establish that he or she was physically present in Canada for a minimum of
three years or 1095 days out of the four years immediately preceding their
application for citizenship. If an applicant is short by any amount of time,
the residence requirements of the Act are not met and the applicant is not
entitled to citizenship.
[18]
In
the case at bar, it is clear from the citizenship judge’s notes to the Minister
that this was the test applied. Not only does the citizenship judge cite the Pourghasemi
decision, but according to the notes submitted by the citizenship judge
to the Minister, he was not convinced on a balance of probabilities, after
considering the applicant’s testimony and documentary evidence, that the
applicant had been physically present in Canada for a total of 1095 days.
[19]
The
three test approach has been the subject of much critique. Recently, this Court
in Canada
(Minister of Citizenship and Immigration) v. Takla, 2009 FC 1120 (Takla),
which was endorsed in Canada (Minister of Citizenship and Immigration) v.
Elzubair, 2010 FC 298 at paragraph 13, argued in favor of one consolidated,
contextual approach to be used when determining residence. In the case at bar,
neither the applicant nor the respondent contend that a contextual approach
should have been adopted. As a result, it is not necessary to consider whether
this new approach should be applied. The Court will look only to whether the
citizenship judge was reasonable in his conclusion that on a balance of
probabilities the applicant did not establish her presence in Canada for a minimum of 1095
days.
[20]
The
essence of the applicant’s argument that the decision is unreasonable is twofold:
first, in rejecting her application on the facts, the applicant asserts that
the citizenship judge required her to establish her presence in Canada on a
standard more stringent than a balance of probabilities, and second, the
citizenship judge erred since he himself acknowledged on the form to the
Minister that the applicant had been in Canada for a total of 1097 days.
According to the applicant, either he erred in law by requiring her to
establish her presence in Canada for a longer period of time than required by the Act or the
citizenship judge erred in fact by failing to correctly note the number of days
the applicant was physically present in Canada.
[21]
With
regard to the second point, it is clear that the notation on the form to the
Minister was referring to the number of days the applicant alleges to have been
present in Canada; it is not a reflection of any finding of fact made by the
citizenship judge. This figure comes from the information provided by the
applicant on her application for citizenship. While there is a discrepancy of
eight days between the citizenship judge’s figure on the form to the Minister
and the applicant’s figure on her application for citizenship, as noted above,
this is simply the result of a mathematical miscalculation on the part of the
applicant with regard to her trip to Syria between June and August 2004. The applicant’s
allegation that the citizenship judge erred in this respect must therefore be
dismissed.
[22]
Lastly,
it is trite law that the burden is on the applicant to establish her presence
in Canada (Chen v. Canada (Minister of Citizenship and Immigration), 2008 FC 763 at
paragraph 18). Neither party contests that the applicant is required to
establish on a balance of probabilities that she was physically present in Canada for 1095 days during
the relevant period. Having regard to the facts, the applicant contends,
however, that she met her burden by providing direct and uncontradicted
evidence which established her presence in Canada. The applicant submits that
the information she provided when she filled out the application form and her
oral testimony during the hearing on August 17, 2009 should have been enough.
Without evidence to the contrary, the applicant argues that she should be
presumed to be telling the truth and that any conclusion to the contrary is
purely speculation.
[23]
There
is simply no evidence that the applicant was held to a more stringent standard
than required by law. As noted by the respondent, the best evidence of a
person’s absence from the country is their passport. In the case at bar, the
applicant was only able to supply a partial photocopy of the passport she used
for two out of the four years preceding her application for citizenship. Given
that the missing pages could have demonstrated additional absences from Canada, the citizenship judge
acted reasonably in requesting the applicant to supplement her application with
further documentation that could establish her physical presence in Canada. Having reviewed the
additional documents, I cannot find that the citizenship judge acted
unreasonably in coming to his conclusion.
[24]
While
the documents submitted are proof of the applicant’s life in Canada, they do not establish
that she was physically present for the minimum mandated time. As noted by the
citizenship judge, the documents are somewhat incomplete: her children’s report
cards demonstrate even more absences than what have been claimed by the
applicant, she does not have a tax form from every year she has been in Canada
and the evidence of her employment does not establish her physical presence in
the country during the period in question. Furthermore, and determinative of
the present appeal, the citizenship judge correctly notes a discrepancy between
the stamps contained within the applicant’s passports and the dates she claims
to have been absent from Canada. Most notably, the applicant is missing an
entry stamp in her current passport from her trip to London and Syria from which she
allegedly returned in January 2005. The next entry stamp is from September
2005, some nine months later, which given the fact that the applicant contends
having met the residence requirement by only two days, would put her well below
the minimum mandated time required by the Act.
[25]
With
the foregoing in mind I cannot find that the citizenship judge acted
unreasonably in finding as he did. It should be noted that the outcome of the
present appeal does not prohibit the applicant from reapplying for citizenship
at any future date when she believes she has met the requirements of the Act.
[26]
The
appeal is dismissed without costs.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the appeal is dismissed
without costs.
“Luc
Martineau”
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