Date:
20120511
Docket:
T-1446-11
Citation:
2012 FC 558
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, May 11, 2012
PRESENT:
The Honourable Mr. Justice Boivin
BETWEEN:
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NOUREDDINE ZARI
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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 from a decision, dated May 17, 2011, of a citizenship judge
denying the applicant’s citizenship application, pursuant to subsection 14(5) of
the Citizenship Act, RSC 1985, c C-29 (the
Act). Under paragraph 300(c) of the Federal Court Rules, SOR/98-106
(Rules), appeals in citizenship matters are brought as applications and are
subject to sections 300 et seq. of the Rules.
Facts
[2]
Noureddine
Zari (the applicant) is a citizen of Morocco. He is acting on his own behalf in
this proceeding.
[3]
The
applicant obtained permanent resident status on July 9, 2002, and arrived in
Canada on November 8, 2005.
[4]
On
January 12, 2009, the applicant submitted an application for citizenship in
which he declared that he had been present in Canada for 1159 days and absent
for 301 days during the period required under the Act.
[5]
The
applicant was interviewed by an immigration officer on June 1, 2010.
[6]
In
a letter dated July 19, 2010, Citizenship and Immigration Canada (CIC) advised
the applicant that additional information and documents, including a residence
questionnaire, were needed to process his application. The applicant completed
the residence questionnaire and sent it with his documents to CIC on July 30,
2010.
[7]
On
February 14, 2011, the applicant appeared before the citizenship judge for an
interview regarding his citizenship application. At the hearing, the
citizenship judge requested further evidence from the applicant.
The
decision under appeal
[8]
The
citizenship judge determined that the applicant did not meet the requirements
of paragraph 5(1)(c) of the Act, specifically, having accumulated at
least three years of residence in Canada within the four years immediately
preceding the date of his application, namely, from January 12, 2005, to
January 12, 2009. Relying on Pourghasemi (Re), 62 FTR 122, [1993]
FCJ No 232 (Pourghasemi), the citizenship judge found that the
applicant’s physical presence in Canada had not been sufficiently established
by the documents and additional information provided by the applicant in
support of his application.
[9]
The
citizenship judge noted that in accordance with subsection 15(1) of the Act, he
had considered whether or not to recommend an exercise of discretion under
subsection 5(4) of the Act, which provides that the Governor in Council may
direct the Minister to grant citizenship to any person in order to alleviate
cases of special and unusual hardship or to reward services of an exceptional
value to Canada. However, the citizenship judge found no reason to recommend that
such direction be given to the Minister because the applicant had not presented
any evidence in this regard.
Issue
[10]
The
Court is of the view that the only issue in this case is the following:
Did the
citizenship judge err in concluding that the applicant failed to meet the
requirements of paragraph 5(1)(c) of the Act?
Relevant
legislation
[11]
5(1)(c)
of the Act provides:
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Grant
of citizenship
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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Attribution
de la citoyenneté
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.
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[12]
Subsection
14(5) of the Act sets out the following:
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Appeal
14.
(5) The Minister or the applicant may appeal to the Court from the decision
of the citizenship judge under subsection (2) by filing a notice of appeal in
the Registry of the Court within sixty days after the day on which
(a)
the citizenship judge approved the application under subsection (2); or
(b)
notice was mailed or otherwise given under subsection (3) with respect to the
application.
[...]
...
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Appel
14.
(5) Le ministre et le demandeur peuvent interjeter appel de la décision du
juge de la citoyenneté en déposant un avis d'appel au greffe de la Cour dans
les soixante jours suivant la date, selon le cas :
a)
de l'approbation de la demande;
b)
de la communication, par courrier ou tout autre moyen, de la décision de
rejet.
...
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Applicable
standard of review
[13]
Decisions
of a citizenship judge are reviewable on a standard of reasonableness (see Pourzand v Canada (Minister of Citizenship and Immigration), 2008 FC 395 at paragraph 19, [2008] FCJ No 485; Yan v Canada (Minister of Citizenship and Immigration),
2009 FC 1153 at paragraph 15, [2009] FCJ 1438; Canada (Minister of
Citizenship and Immigration) v Saad, 2011 FC 1508 at paragraph 9, [2011]
FCJ No 1801). The
Court will intervene only if the decision does not fall within a "range of
possible, acceptable outcomes which are defensible in respect of the facts and
law": Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 47, [2008]
1 SCR 190.
Analysis
[14]
The
Court points out that the period in question in this matter is between January
12, 2005, and January 12, 2009.
[15]
In the present case, despite the numerous documents
submitted by the applicant, the citizenship judge concluded that the
applicant’s evidence was somewhat lacking. Accordingly, in applying the
strict test of residency set out in Pourghasemi,
the citizenship judge determined that the applicant
had failed to establish that he met the residency criteria as provided by
paragraph 5(1)(c) of the Act, specifically, that the applicant had stayed in Canada for a
minimum period of 1095 days.
[16]
The
applicant claims that the decision of the citizenship judge is wrong in fact
and in law. The applicant contends that he met all of the criteria for Canadian
citizenship. He submits that all of the documents he provided were in
chronological order from the day he arrived in Canada until the day he filed
his application. The applicant further asserts that the documents submitted
demonstrate that he was physically present in Canada for a period of three
(3) years out of the four (4) years preceding the date of his application.
In particular, the applicant cites the following evidence:
- He
worked for HUNT Personnel from December 7, 2005;
- From
January 16, 2006, to June 21, 2006, he attended English courses;
- From
February 20 to March 17, 2006, he attended job search training;
- From
January 1, 2006, to October 31, 2007, he received income security
benefits and was required to go to the bank in person and present two
pieces of identification to cash his benefit cheque, which shows that he
was physically present in Canada for this entire period;
- In
June 2007, he rented an apartment at 7595 Viau for a 12-month period;
- From
October 11, 2007, to December 6, 2007, he worked at ADP “Doctor of Quebec
Foundation”;
- From
December 10, 2007, to January 15, 2009, he received CSST (occupational
health and safety commission) benefits after an accident and was
required to go to the bank in person and present two pieces of
identification to cash his benefit cheque, which shows that he was
physically present in Canada for this entire period;
- In
2008, he visited a physical rehabilitation clinic twice a week.
[17]
In
light of the parties’ submissions and the evidence in the record, the Court
cannot accept the applicant’s arguments. The Court notes that the burden of
proving physical presence in Canada rests with the applicant (Chen v Canada (Minister of Citizenship and Immigration), 2008 FC 763, [2008] FCJ No
964) and that he had the opportunity to adduce additional evidence. As the
citizenship judge reasonably noted, the evidence submitted by the applicant
contained a number of anomalies, including: a single lease covering only the
period from July 1, 2007, to June 30, 2008 (Respondent’s Record, p. 58);
this lease is not signed by the applicant and, of equal significance, it is not
dated (Respondent’s Record, p. 61); the applicant failed to report his absence
from January 12, 2005, to November 8, 2005, in his residence questionnaire (Tribunal
Record, p. 26); other exhibits in the records such as the Hydro Québec invoice,
the CSST benefits (Tribunal Record, pp. 189, 214) as well as the job at Hunt
and the English courses only cover specific, limited and brief periods that do
not cover all of the required period.
[18]
The
applicant has not convinced this Court that the citizenship judge erred in
concluding that that applicant failed to establish through satisfactory and
consistent evidence that he was physically present in Canada during the
requisite period.
[19]
The
Court finds this decision to be reasonable, within a
range of acceptable outcomes and defensible in respect of the facts and law (Dunsmuir,
supra).
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the
appeal is dismissed.
“Richard
Boivin”
Certified
true translation
Sebastian
Desbarats, Translator
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