Date:
20120705
Docket:
T-1811-11
Citation:
2012 FC 858
Ottawa, Ontario, July
5, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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GHAZANFAR BAIG
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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]
The
applicant appeals, pursuant to section 14(5) of the Citizenship Act,
RSC, 1985, c C-29 (Citizenship Act) the decision of Citizenship Judge K.
Mohan (Judge), dated September 7, 2011, rejecting the applicant’s application
for a grant of Canadian citizenship pursuant to section 5(1) of the Citizenship
Act. The
appeal being brought pursuant to subsection 14(5) of the Citizenship Act
is governed by the Federal
Courts Rules (SOR/98-106) (Rules) pertaining to
applications; hence the parties status’ as applicant and respondent. The Citizenship Act does not
provide for further appeals following a disposition by this Court. For the reasons that follow the appeal is dismissed.
Facts
[2]
The
applicant, Ghazanfar Baig, is a citizen of Pakistan. He and his family were
granted permanent residence in Canada on August 20, 2004. His wife and three
children are all now Canadian citizens.
[3]
The
applicant applied for Canadian citizenship on April 8, 2008 and had his
citizenship hearing on July 18, 2011.
[4]
In
his decision dated September 7, 2011, the Judge applied the residence test
articulated by Justice Muldoon in Re Pourghasemi, [1993] FCJ No 232 and
endorsed in Martinez-Caro v Canada (Minister of Citizenship and Immigration),
2011 FC 640. Under that test, the applicant met the residence requirement of
the Citizenship Act if he established that he had been physically
present in Canada for 1095 days in the relevant four-year period. The Judge
determined, correctly, that the relevant period in this case was between August
20, 2004, and April 8, 2008.
[5]
At
the applicant’s hearing the Judge notified the applicant that he was not
satisfied that the applicant met the residence requirement and afforded him an
opportunity to provide additional documentation in support of his application.
[6]
The
Judge found that there were many gaps during the relevant period in which it
was difficult to determine whether the applicant was present in Canada. The Judge found insufficient evidence to substantiate that the applicant worked as
a self-employed consultant in Canada during that period. The Judge noted that
the applicant’s reported income on his tax returns for 2004-2007 was very low
considering he was supporting a family of five. The Judge also found that the
applicant had not provided a clear audit trail of his revenues and expenses, as
requested.
[7]
The
Judge noted that the applicant provided health records for the relevant period,
but found that they revealed few medical appointments in 2005, and none in
2006. While there were several visits from 2007 onwards, these records did not
establish that the applicant was physically present for 2005 and 2006. He
noted that the onus was on an applicant to establish that he or she fulfills
the requirements for citizenship and concluded that the applicant had not
established, on a balance of probabilities, that he had been physically present
in Canada for the required 1095 days.
[8]
Finally,
in accordance with section 5(4) of the Citizenship Act, the Judge had
considered whether to make a favourable recommendation for a discretionary
grant of citizenship. He decided not to make a favourable recommendation
because there were inadequate circumstances of special and unusual hardship, or
services of an exceptional value to Canada to warrant such a recommendation.
The application was therefore not approved.
Standard of Review/Issue
[9]
The
parties frame the issues as follows:
i.
Was
the Judge’s decision reasonable?
ii.
Were
the Judge’s reasons adequate?
[10]
The
parties agree that the Judge’s findings of fact are to be assessed on a
standard of reasonableness: Canada (Minister of Citizenship and
Immigration) v Al-Showaiter, 2012 FC 12. In Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
the Supreme Court of Canada held that the adequacy of the reasons is not a
standalone ground of review or a matter of procedural fairness, but rather,
forms part of the reasonableness analysis.
Analysis
[11]
The
applicant argues that since the Judge applied the physical presence test as
articulated in Pourghasemi he should have examined the applicant’s
passport thoroughly to determine if the applicant had been physically present
for the requisite number of days. However, the Judge noted that the applicant
had an electronic Pakistan non-resident Card (NICOP), and therefore the lack of
stamps in his passport would not necessarily establish that he had not
travelled during the relevant period.
[12]
The
applicant also submits that the Judge failed to ask him to submit his travel
records from Canada Border Services Agency; however, the applicant has
presented no authority that suggests the Judge is obligated to make this
request. Such an obligation appears contrary to the onus on the applicant to
establish he has met all the requirements for citizenship as stated in Maharatnam
v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 405 (TD),
para 5.
[13]
Although
the Judge’s notes indicate that the applicant holds a Pakistani passport no
mention of it is made in the decision, other than:
You are a Citizen of the [sic] Pakistan and you also have the Pakistani electronic non-Resident Card, NICOP where the entry-exit to
Pakistan can be recorded instead of stamps on the passport. I also
understand that you own or owned properties in Pakistan.
[14]
It
is axiomatic that the onus rests on the applicant to establish on a balance of
probabilities that he or she meets the residency requirements for citizenship.
The thrust of the applicant’s argument is that the Judge, having given the
applicant a further opportunity to produce documents, was obligated to advise
the applicant of his specific concerns as to the evidence of residency
presented by the applicant. I do not agree. In essence, the applicant seeks
to shift the evidentiary burden back to the Judge, whereas it rest squarely
with the applicant.
[15]
The
applicant further argues that the Judge failed to examine the applicant’s
passport. It is noteworthy that there is no copy of the passport in the record
and the applicant made no effort to include his passport in the record. The
only reasonable inference to be drawn from the fact that the passport was not
included was that, given the applicant’s use of the electronic NICOP is that it
was not stamped and thus of no probative value. This was a conclusion
reasonably open to the Judge.
[16]
The
applicant contends that the passport was critical evidence which ought to have
been included in the record. As noted, I reject this argument as it was open
to the applicant to provide copies of the evidence said to be missing and of
significant probative value. Secondly, the reason why there is no analysis of
the passport is clear on the face of the record.
[17]
The
balance of the applicant’s submissions are that the Judge failed to properly
consider the evidence presented and that he failed to give adequate reasons for
his conclusions. Most of these arguments relate to the applicant’s alleged
work in Canada. The applicant argues that the Judge speculated that there were
concerns about the source of the applicant’s income and whether he was working
in Canada during the relevant period. The applicant claims he presented
evidence on these points that was unreasonably ignored, and also that the Judge
relied on irrelevant evidence.
[18]
Contrary
to the applicant’s submissions, the Judge did not express concerns about the
applicant’s work history without justification. The Judge noted that the
applicant’s reported income did not correspond with the amounts in his bank
accounts, nor with the amount necessary to support a family of five with
multiple children enrolled in post-secondary education. Furthermore, the
Judge’s notes from his interview of the applicant reveal that the applicant
acknowledged that all his business was conducted in the Middle East. Based on
this evidence alone the Judge reasonably concluded that the applicant had
failed to establish he was living and working in Canada for a sufficient number
of days during the relevant period.
[19]
The
applicant asserts it was erroneous for the Judge to consider the applicant’s
purchase of rental properties, since these purchases occurred after the
relevant period. However, the Judge’s comments about these properties, when
read in context, did not give rise to an error. The Judge referred to the
purchase of the rental properties in response to the applicant’s claim that he
was supporting his family in part through savings he brought with him to Canada:
You mentioned that you had brought some money from
overseas. You maintain a US dollar account in Canada. However, during the
hearing you had also mentioned that you had bought three properties in Canada and they were rented out. Looking at the information you provided, it looks like
these overseas funds were used to purchase these properties…
[20]
Thus,
this part of the analysis relates to the finding that the applicant’s reported
income from work in Canada was insufficient to support his family. The Judge
found that the applicant also could not have been supporting his family with
the savings brought from overseas because those funds were used to purchase
three properties. Thus, these purchases were relevant because they undermined
the applicant’s evidence about how he was supporting his family during the
relevant period.
[21]
I
find that the Judge’s decision was reasonable and, furthermore, that his
reasons amply justify his conclusions. The appeal is therefore dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the appeal is hereby dismissed. Costs
to the respondent in the amount of $250.00.
"Donald
J. Rennie"
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