Docket: T-796-11
Citation: 2012 FC 373
Ottawa, Ontario, March 29, 2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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MANIJEH KOHESTANI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an appeal of the decision of a Citizenship Judge under subsection 14(5) of
the Citizenship Act, RSC 1985, c C-29 (the Act). Manijeh Kohestani
contests the denial of her citizenship application in a letter dated April 19,
2011 on the grounds that she failed to disclose multiple trips and this affected
her credibility and declarations. Her appeal was heard at the same time as
that of her husband, Gholamali Navidi (Court File T-795-11).
[2]
For
the following reasons, the appeal is dismissed.
I. Facts
[3]
The
Applicant is an Iranian national. On May 5, 2005, she was granted permanent
residence in Canada as an
accompanying dependant of her husband, who immigrated to the country as part of
the Federal Investors Program.
[4]
On
March 23, 2009, she applied for Canadian citizenship. The relevant residency
period was from May 5, 2005 to March 23, 2009. She declared a total of 117
days of absences from Canada for a claimed physical presence of 1,300
days.
[5]
On
September 13, 2010, she appeared before a Citizenship Judge. Since the
documents submitted to that date had not assisted in proving physical presence,
she was given the opportunity to provide additional information in support of
her claim, including ICES Traveller History and Banking Records.
[6]
On
October 6, 2010, the Citizenship Judge received a package containing the
requested documents.
II. Citizenship
Determination
[7]
In
summarizing the evidence presented by the Applicant, the Citizenship Judge
referred to the package of additional documents. While it contained both
requested documents, neither assisted the Applicant in establishing her
physical presence.
[8]
The
ICES Traveller History for March 1, 2005 to present revealed multiple
undeclared travel dates in the period under review. The Citizenship Judge
stated that “[t]he failure to declare all these trips on both application for
citizenship, and Residence Questionnaire has done irreparable harm to your
credibility and hence, your declarations.”
[9]
The
banking information related to a joint account with her husband and his sister.
Those records did not identify the person activating the account or performing
the transactions to prove physical presence.
[10]
The
Citizenship Judge therefore concluded:
After a thorough review of the provided
documentation, and in light of your failure to disclose multiple trips
(absences) during the period under review, which corresponds with the several long
periods of inactivity on your Ministry of Health and Long Term Care Payment
Summary, your claim of 117 days of total absences from Canada is not accurate,
nor could your other claims be proven and substantiated.
Therefore, on the balance of
probabilities, I am not convinced you have the necessary 1, 095 days of
physical presence and I am not satisfied you meet the residence requirements
under paragraph 5(1)(c) Residence of the Act.
III. Issues
[11]
The
issues raised by the Applicant can be addressed as follows:
(a) Did
the Citizenship Judge err in finding that the Applicant did not meet the residency
requirement under subsection 5(1)(c) of the Act?
(b) Was the Applicant denied
procedural fairness or natural justice?
IV. Standard
of Review
[12]
A
Citizenship Judge’s determination as to residency is reviewable on a standard
of reasonableness (Pourzand v Canada (Minister of
Citizenship and Immigration), 2008 FC 395, [2008] FCJ no 485 at para
19). This Court should only intervene where the decision fails to demonstrate
“the existence of justification, transparency and intelligibility” and does not
fall “within a range of possible, acceptable outcomes” (Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 SCR 190 at para 47).
[13]
Issues
of procedural fairness and natural justice require the correctness standard (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339 at para 43).
V. Analysis
A. Residency
Requirement
[14]
The
Applicant’s principal argument is that the Citizenship Judge failed to properly
apply the residency test to the facts as prescribed in Canada (Minister of
Citizenship and Immigration) v Takla, 2009 FC 1120, [2009] FCJ no 1371. As
will become clear, there is no relevance to that argument in the case at bar.
[15]
Subsection
5(1)(c) of the Act establishes the residency requirement. Citizenship will be
granted where, according to the prescribed formula, an applicant “within the
four years immediately preceding the date of his or her application,
accumulated at least three years of residence in Canada.”
[16]
The
term “residence” has been interpreted in various ways. Justice Francis Muldoon
favoured a strict physical presence test in Re Pourghasemi (1993), 62
FTR 122, 19 Imm LR (2d) 259. By contrast, Justice Barbara Reed
established a series of six qualitative factors to determine where an applicant
“regularly, normally or customarily lives” in Re Koo (1992), 59
FTR 27, [1993] 1 FC 286.
[17]
This
Court continues to engage in some debate as to whether one test is more
appropriate. Most recently, while Justice Robert Mainville in the decision in Takla,
as raised by the Applicant above, endorsed the qualitative approach in Re
Koo; Justice Donald Rennie argued that the strict physical presence
approach in Re Pourgahsemi was more reflective of legislative intent in Martinez-Caro
v Canada (Minister of Citizenship and Immigration), 2011 FC 640, [2011] FCJ
no 881.
[18]
As
stressed in Lam v Canada (Minister of
Citizenship and Immigration) (1999), 164 FTR 177, [1999] FCJ no
410, it remains open to citizenship judges to adopt either test.
[19]
In
my view, Parliament’s intention was to require the physical presence of an
applicant in the period set out in the statute. The Court has over the years
added various different tests or nuances. The Applicant is asking the Court to
adopt the attempt by Justice Mainville in Takla, above to consolidate
these various tests as the sole test for compliance with subsection 5(1)(c).
[20]
However,
despite the laudable goal of having one uniform test for citizenship it would
be illogical in my view to prevent a citizenship judge from utilizing the test
most clearly intended by Parliament in order to achieve this goal. Thus, where
a citizenship judge utilizes the physical presence test and finds that an
applicant has failed to prove the actual days required to establish physical
presence in Canada, there is no need, in my view, for the citizenship judge to
do anything more.
[21]
Moreover,
although the Applicant provided numerous submissions in this regard, the test
for residency was not the critical factor in this Citizenship Judge’s decision.
As the Respondent maintains, the Applicant would not have met either the
quantitative or qualitative tests since the Citizenship Judge found her
evidence was not credible due to a failure to disclose several absences.
[22]
The
importance of establishing credible evidence of residency was expressly
addressed by Justice Rennie in Abbas v Canada (Minister of
Citizenship and Immigration), 2011 FC 145, [2011] FCJ no 167 where he
stated:
[8] Irrespective of which test is
applied, each applicant for citizenship bears the onus of establishing sufficient
credible evidence on which an assessment of residency can be based, whether it
is quantitative (Re Pourghasemi) or qualitative (Koo). In this
regard, the citizenship judge must make findings of fact - findings which this
Court will only disturb if unreasonable.
[...]
[13] Moreover, as noted earlier,
regardless of which test is actually applied by a citizenship judge, there must
be a sufficient factual foundation to warrant the application of a test in the
first place. In my opinion, had the Citizenship Judge applied Takla, the
outcome in Mr. Abbas' case would have been no different than the outcome
presented by applying Re Pourghasemi. There were simply too many
unexplained discrepancies with respect to residency in his application. These
would not have simply evaporated under the qualitative analysis espoused in Koo
and Takla. Inconsistent or unclear evidence of residency will not gain a
greater life or strength under the qualitative Koo test.
[23]
Referring
to this reasoning in Atwani v Canada (Minister of Citizenship and
Immigration), 2011 FC 1354, [2011] FCJ no 1656, Justice Judith Snider found
it was appropriate for a citizenship judge to conclude that an applicant had
not met the burden of establishing physical presence when issues arose as to
undeclared days of absence from Canada. She stated:
[16] On the facts of the case, the
Applicant would have failed either test for residency – be it a Re Koo
or Re Pourghasemi test. How can an assessment of residence be conducted
when an accurate number of days of residence cannot be established?
[17] […] The importance of
citizenship and the application of common sense dictate that a person seeking
citizenship in Canada must come with a credible
record of his time spent in Canada. Thus, any starting point for
a residency analysis – whether under Re Koo or Re Pourghasemi –
must be the total number of days of physical presence, supported by credible
evidence.
[24]
The
findings in Abbas and Atwani, above are directly applicable in
this instance. The Applicant’s evidence as to travel indicated several
additional absences from Canada and cast doubt on her application more
broadly. A negative finding of credibility can extend to all relevant evidence
(see Sheikh v Canada (Minister of Employment
and Immigration) (1990), 11 Imm LR (2d) 81, [1990] FCJ no
604 (FCA)).
[25]
The
Applicant has suggested that the Citizenship Judge erred in failing to consider
the evidence as a whole, namely that even if the three undeclared absences were
taken into account she would still have met the required number of days of
residence. She also points to evidence on her Ministry of Health Summary.
[26]
I
am unwilling to accept, however, that the Citizenship Judge’s conclusion was
unreasonable given the concerns raised by evidence of further absences. On
more than one occasion the Applicant made declarations as to the accuracy of
the evidence she was putting forward of physical presence. She cannot expect
these declarations to be treated lightly.
[27]
The
Citizenship Judge was therefore justified in his conclusion that this
additional evidence had done “irreparable harm” to her credibility. The
Applicant was under an obligation to provide credible information as to her
residency which necessarily implies that it is complete, accurate, reliable and
relevant.
[28]
I
am similarly unconvinced by the Applicant’s argument that the Citizenship Judge
failed to articulate sufficient reasons for his decision. The Applicant claims
that the Citizenship Judge merely listed the evidence without providing
analysis based on Lai v Canada (Minister of
Citizenship and Immigration) (2000), 188 FTR 113, [2000] FCJ no 1361 at
paras 11-12). She also insists that grounds exist for review because she is
unclear how her application was assessed. She relies on Canada (Minister of
Citizenship and Immigration) v Salim, 2010 FC 975, [2010]
FCJ no 1219.
[29]
These
cases are not applicable to the decision made regarding the Applicant. Although
he begins with a numbered summary of the relevant evidence, the Citizenship
Judge proceeds to analyze that evidence and explain the reasons for his
conclusion. The Applicant merely disagrees with that conclusion.
[30]
I
see no justification for intervening in the Citizenship Judge’s decision where
it is perfectly clear to the Applicant in the reasons provided that her
application was not approved given serious credibility concerns arising from
undeclared absences.
B. Procedural
Fairness
[31]
The
Applicant further contends that she was not given an opportunity to respond to
the negative credibility finding. She has tried to include additional
information explaining why she did not disclose the additional absences in an
affidavit and suggests that the Citizenship Judge failed to give her the
benefit of the doubt. Alternatively, she suggests her consultant failed to advise
her to obtain ICES Traveller History and if she had been so advised she would
have disclosed the trips.
[32]
There
is no merit to these arguments. As the Respondent makes clear, the Applicant
was given a hearing before the Citizenship Judge. She had not presented
sufficient evidence to establish residency and was provided with the
opportunity to submit additional evidence. The Citizenship Judge thereafter
made negative credibility findings that I consider reasonable in light of the
evidence ultimately before him. There is no requirement to further give the
Applicant the benefit of the doubt.
[33]
Moreover,
I am not permitted to evaluate the Applicant’s subsequent explanations for her
failure to disclose the absences. This appeal proceeds solely on the record
before the Citizenship Judge (see Lama v Canada (Minister of
Citizenship and Immigration), 2005 FC 461, [2005] FCJ no 577 at
para 21). I also note that she confirmed on two occasions the accuracy of the
information put forward.
[34]
As
a consequence, the Applicant has not demonstrated any breaches of natural justice
or procedural fairness.
VI. Conclusion
[35]
The
Citizenship Judge reasonably determined that the Applicant had not provided
credible evidence. This warranted the denial of her application. In addition,
there was no breach of procedural fairness or natural justice in the
circumstances.
[36]
Accordingly,
this appeal is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this appeal is dismissed.
“ D.
G. Near ”
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