Dockets: T-1961-10
T-1960-10
Citation: 2012 FC 88
[UNREVISED CERTIFIED ENGLISH
TRANSLATION]
Ottawa, Ontario,
January 23, 2012
PRESENT: The
Honourable Mr. Justice Harrington
Docket: T-1961-10
BETWEEN:
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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MOUNTASSIR EL
BOUSSERGHINI
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Respondent
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Docket: T-1960-10
AND BETWEEN:
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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ZAKIA KRANFOULI
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Respondent
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REASONS FOR
JUDGMENTS AND JUDGMENTS
[1]
The
fundamental issue in these appeals is whether the decision of the Citizenship
Judge, finding Mr. El Bousserghini and his wife, Ms. Kranfouli, met the
residency requirements under subsection 5(1) of the Citizenship Act, is
reasonable. Under paragraph 5(1)(c) of the Act, citizenship is granted
to a permanent resident who, within the four years immediately preceding the
date of his or her application, accumulated at least three years of residence
in Canada.
[2]
The
issue not before me, directly at least, and that is definitely more important,
is whether permanent residents must continue to comply with their residency
obligation—namely, whether they must be present in Canada for at least 730 days
per five-year period—while their citizenship application is being processed;
here, it is a period of more than four years.
[3]
The
case unfolded as follows.
THE FACTS
[4]
Mr.
El Bousserghini and Ms. Kranfouli, and their children, all citizens of Morocco,
arrived in Canada in July 2003; they became permanent residents that same day.
They filed their citizenship applications on January 9, 2008, and claimed to
have met all the conditions of section 5 of the Citizenship Act,
including the residency conditions. Under the Act, a permanent resident must
reside in Canada for at least three of the four years preceding the date of his
or her application. Although this Court does not uniformly interpret the
concept of residency as found in the Act, the respondents claim to have been
physically present in Canada for more than three years during the four years in
question. However, citizenship authorities have some concerns about this. A
little over a year later, in April 2009, the respondents were to complete a
questionnaire, and were called to an interview with a citizenship officer. They
were to produce their passports for the period under review, and their tax returns,
bank statements, utility bills and other passive indicia showing their physical
presence in Canada. Although they submitted a considerable number of documents,
each produced a Moroccan passport that covered only part of the four years.
According to them, they had to turn in their old passports, which were about to
expire, to the Moroccan government to get new ones, and they did not make
photocopies before turning them in. This explanation was not questioned, but
the Minister claims that they showed negligence by not keeping any copies of
their passports.
[5]
At
any rate, in August 2009, the citizenship officer referred their applications
to a Citizenship Judge.
[6]
Interviews
with Mr. El Bousserghini and Ms. Kranfouli and Citizenship Judge Duguay were
held on September 28, 2010. There is no transcript of the hearing but the judge
was satisfied that the respondents met the conditions set out in the Act, and
so advised the Minister that day. In particular, he was convinced that each was
physically present in Canada for more than 1,095 days over four years, from
January 9, 2004, to January 8, 2008.
[7]
The
Minister is appealing from these decisions. In this case, it must be determined
whether the Citizenship Judge's decision is reasonable and understandable
within the meaning of Dunsmuir v New-Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190.
[8]
By
order of the Acting Chief Justice dated November 28, 2011, the appeals were set
down for hearing January 9, 2012.
REPORT UNDER
SECTION 44 IRPA
[9]
In
the meantime, on December 28, 2011, an immigration officer advised the Minister
that Mr. El Bousserghini and Ms. Kranfouli were inadmissible under section 44
of the Immigration and Refugee Protection Act [IRPA]. According to the
officer, the respondents did not comply with section 41 IRPA because they had
not respected the conditions of section 28 IRPA. The provisions of this section
are relevant in the present case because they require the permanent resident to
be physically present in Canada for at least 730 days during a five-year
period. Having considered the report to be valid, the Minister's representative
made a removal order that same day. The respondents have 30 days to appeal from
this removal order before the Immigration Appeal Division [IAD], a time limit
that has not yet expired.
[10]
Here,
the importance of the report comes from the fact that one of the conditions for
obtaining Canadian Citizenship by naturalization is that the individual must
not be under a removal order (Citizenship Act, para 5(1)(f)). As
a result, on January 6, 2012, the Minister filed a written motion to suspend
the hearing sine die. The Minister claims that the appeals are now moot,
although he will not discontinue them. In his opinion, if the appeals are
allowed and the files are sent to another Citizenship Judge, that judge will
not be able to approve them because of the removal order issued against the
respondents. On the other hand, if the appeals are dismissed, the citizenship
judge cannot grant citizenship. The Citizenship Judge can only approve a
citizenship application by indicating that the conditions of the Act have been
met at a particular time. Again, the Minister could not grant citizenship to
the respondents because there is a removal order against them.
[11]
Under
the Federal Courts Rules, a notice of application must be served and
filed at least two days before the hearing date. Saturdays and Sundays are not
included in these days. Nonetheless, counsel for the respondents replied in
writing the same day, January 6, 2012. Essentially, the respondents claim that
the lock-in date for their citizenship applications is when they were filed
with Citizenship and Immigration Canada. I informed the parties that I would
hear the motion immediately prior to the actual hearing of the appeals. I
dismissed the motion to adjourn because I was not convinced the appeals had
become moot. Even if they were, the appeals, in my opinion, should be heard
because there is certainly a "live controversy" between the parties (Borowski
v Canada (Attorney General), [1989] 1 S.C.R. 342, [1989] SCJ No 14 (QL).
[12]
I
will elaborate further on these reasons.
DECISION OF THE
CITIZENSHIP JUDGE
[13]
In
his notice to the Minister dated September 28, 2010, the Citizenship Judge
indicated that the respondents were not subject to a removal order, which is
true. When he reviewed the residency conditions, he only considered the
four-year period ending on January 8, 2008. This is the only period of time the
judge was to review (Salaff v Canada (Minister of Citizenship and
Immigration), 2007 FC 1320, [2007] FCJ No 690 (QL)).
[14]
The
Citizenship Judge was assured that during this period, Mr. Bousserghini was
physically present in Canada for 1,119 days, and Ms. Kranfouli for 1,138 days.
Both were accurate about the dates they were absent from Canada, and provided
clear reasons for their absences. Aside from a week-long trip to Cuba, the
respondents returned to their country of origin, Morocco, for various reasons
such as to care for a sick relative, attend to the education of one of their
children, and for business.
[15]
Citizenship
Judge Duguay found that, on a balance of probabilities, both were physically
present in Canada for more than 1,095 days over the 1,460 days immediately
preceding January 9, 2008.
[16]
The
judge did indeed note that the respondents had to hand in their old passports
to the Moroccan government. He did not simply rely on their testimony during
his analysis, but also considered various passive indicia, including details
about their real estate, bank statements, the children's school attendance
records and utility bills. He met with the couple, and clearly found them to be
credible. The judge gave his notice to the Minister as a questionnaire issued
by Citizenship and Immigration Canada; this questionnaire is useful for
determining how the judge proceeded. The judge states the following on the questionnaire:
[Translation]
In determining whether the applicant has
demonstrated that Canada is the country in which he has centralized his mode of
existence, I have considered those questions posed by Justice Reed in rendering
the decision Re Koo (1992) 19 Imm. L.R. (2d) 1, 59 F.T.R. 27 [1993] 1
F.C. 286, (T.D.).
[17]
However,
in Re Koo, the applicant was not physically present in Canada for 1,095
days. Although it is possible to analyze the residency conditions in light of Re
Koo, this analysis is unnecessary when the applicant is present in Canada
for 1,095 days (Canada (Minister of Citizenship and Immigration) v Elzubair,
2010 FC 298, [2010] FCJ No 330 (QL); Canada (Minister of Citizenship and
Immigration) v Salim, 2010 FC 975, [2010] FCJ No 1219 (QL)). As a result,
the opinion of the citizenship judge regarding "the quality of his
connection with Canada" is obiter dictum.
[18]
The
Minister clearly notes that the respondents' credibility is not questioned. He
merely claims that the evidence is insufficient to determine residency, a
burden that is on the respondents. Moreover, it is suggested that the
citizenship judge's reasons are inadequately expressed.
[19]
Regarding
the first point, in my opinion the Minister imposes an excessive burden on the
respondents. In civil cases, the applicable standard of proof is the balance of
probabilities (F.H. v McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41). Although
citizenship is a privilege, the Act does not require corroboration. It is the
responsibility of the original decision-maker, taking the context into
consideration, to determine the extent and nature of the evidence required (Mizani v Canada (Minister
of Citizenship and Immigration), 2007 FC 698, [2007] FCJ No 947 (QL); Abbott
Estate v Toronto Transportation Commission, [1935] S.C.R. 671, 44 CRC 90; Lévesque
v Comeau, [1970] S.C.R. 1010, 16 DLR (3d) 425). I agree that
it would be extremely unusual and perhaps reckless, to rely on the testimony of
an individual to establish his residency, with no supporting documentation. I
also agree that passports are the best evidence, as long as they have been
stamped at each point of entry. Whether it was a failure to produce a document
or a failure to call a witness who could corroborate the facts in the
citizenship application, the decision-maker could come to an adverse finding.
No questions were raised regarding the respondents' explanation that they had
to turn in their passports to the Moroccan government to obtain new ones.
Although it would have been preferable for them to have kept a copy of these
passports, the respondents cannot be punished for not doing so considering the
judge was convinced they were physically present in Canada.
[20]
McDougall, supra,
was a civil case regarding sexual assault in an Indian residential school, more
than 30 years earlier. Contradictions were noted in the applicant's testimony,
which was neither denied nor corroborated by the respondent. In its judgment,
the Supreme Court affirmed the trial judge's decision in favour of the
applicant. At paragraph 40, Justice Rothstein, for the Court, stated that
context is all important and a judge should not be unmindful of inherent probabilities
or improbabilities of the alleged facts or the seriousness of the allegations.
Citizenship Judge Duguay rendered his decision on the respondents' credibility
in light of the overall evidence.
[21]
Regarding
the second point raised by the Minister, it is of note that findings of fact
can only be set aside if it is established that the trial judge made a palpable
and overriding error (Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR
235). The distinction between this standard of review and reasonableness, in
the context of a judicial review, is purely semantic.
[22]
As
Justice Iacobucci stated in Canada (Director of Investigation and Research,
Competition Act) v Southam Inc, [1997] 1 S.C.R. 748, [1996] SCJ No
116 (QL), at page 778:
The standard of
reasonableness simpliciter is also closely akin to the standard that
this Court has said should be applied in reviewing findings of fact by trial
judges. In Stein v. “Kathy K” (The Ship), [1976] 2 S.C.R. 802, at
p. 806, Ritchie J. described the standard in the following terms:
. . . the accepted
approach of a court of appeal is to test the findings [of fact] made at trial
on the basis of whether or not they were clearly wrong rather than whether
they accorded with that court’s view of the balance of probability. [Emphasis
added.]
[23]
Kathy
K,
cited in Southam, also supports the position that a court considering a
judicial review will not set aside the decision of a lower court on a question
of fact when the judge has had the opportunity to see witnesses and observe
their behaviour, unless it can be determined that an overriding error was made.
In the present case, there is no evidence of this.
[24]
The
Minister claims that the analysis of the indicators of residence was
inadequate. The evidence shows that the respondents lived in their residence in
Montréal, filed income tax returns, and used their bank cards extensively. The
bank statements show, among others, expenses at the movies, purchases in many
clothing stores and meals at restaurants. I do not believe it is necessary for
the citizenship judge to discuss these passive indicia in great detail. His
decision is clearly transparent and reasonable within the meaning of Dunsmuir,
supra, as explained at paragraph 47:
Reasonableness is a
deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within
the range of acceptable and rational solutions. A court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[25]
Moreover,
it is possible that the lower courts are overly strict by requiring
decision-makers to provide their reasons, chapter and verse. Recently, in Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] SCJ No 62 (QL), the Supreme Court was reluctant to find
that alleged deficiencies or flaws in the reasons fall
under the category of a breach of the duty or procedural fairness and that they
are subject to a correctness review. At paragraph 16, Justice Abella,
for the Court, stated:
Reasons may not
include all the arguments, statutory provisions, jurisprudence or other details
the reviewing judge would have preferred, but that does not impugn the validity
of either the reasons or the result under a reasonableness analysis. A
decision-maker is not required to make an explicit finding on each constituent
element, however subordinate, leading to its final conclusion (Service
Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses
Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the
reasons allow the reviewing court to understand why the tribunal made its decision
and permit it to determine whether the conclusion is within the range of
acceptable outcomes, the Dunsmuir criteria are met.
[26]
As
a result, in my opinion, there is no reason to intervene in the citizenship
judge's decision that the respondent's met the residency conditions under
paragraph 5(1)(c) of the Citizenship Act, as of January 9, 2008.
RETURN TO THE
REPORT UNDER SECTION 44 IRPA
[27]
I
share the Minister's opinion that, on one hand, Mr. El Bousserghini and Ms.
Kranfouli cannot receive a favourable recommendation if I allow the appeals and
refer the cases back to another citizenship judge because they are currently
subject to a removal order. On the other hand, if I dismiss the appeals, the
respondent's fate remains unsure since their permanent resident status is
questioned—an issue that is not mine to decide. According to the case law, the
Minister is not required to grant citizenship if he discovers a false
declaration after the citizenship judge has submitted his report, despite the
restrictive wording of section 5 of the Act (Khalil v Canada (Secretary of
State), [1999] 4 FC 661, [1999] FCJ No 1093 (QL) (FCA)). In this case, the
citizenship judge is sure there was no false declaration, and there is no
reason for this Court to intervene. Adjourning the hearing of these appeals, to
allow the IAD to hear the appeal from the removal order, would prevent the
respondents from presenting this Court's decision in the case at bar to the
IAD. In my opinion, this Court's decision is an important factor the IAD should
consider in the appeal.
[28]
There
are two elements in the report under section 44 IRPA that I find are of
concern. First, if the facts in the report are accurate, it is possible that
the respondents, and other people in similar situations, only remain in Canada
for the minimum amount of time to meet the conditions of the Act, and then
submit their citizenship applications on the way to the airport, to almost
never set foot in the country again.
[29]
Second,
the report makes no mention of the citizenship judge's decision found in the
citizenship files, in which he advises the Minister that the respondents met
the residency conditions. In Mr. El Bousserghini's case, the immigration
officer reviewed the period of June 22, 2008, to October 26, 2011. Relying on
the passport, the officer found that he was physically present in Canada for 51
days, including the day of his interview with the citizenship judge on
September 28, 2010. Although this period is less than five years, even if Mr.
El Bousserghini had been present in the country for all the remaining days, he
would not have reached the 730 days required by the IRPA—assuming, of course,
that the information the immigration officer relied on is accurate.
[30]
As
for Ms. Kranfouli, the report only covers the period of February 14, 2009, to
October 26, 2011. According to the immigration officer, Ms. Kranfouli was
physically present in Canada for 33 days as of February 2009. However, it is
obvious that there is no information in her citizenship file about the period of
time between the filing of her application on January 9, 2008, and February 13,
2009. This period must be taken into consideration when the officer considers
the five years preceding October 26, 2011.
JUDGMENT
FOR
THE FOREGOING REASONS;
THE
COURT ORDERS that:
1.
In
docket T-1961-10, the Minister's appeal from the decision to accept the
citizenship application of Mountassir El Bousserghini, rendered on September
28, 2010, by citizenship judge Gilles H. Duguay, is dismissed.
2.
In
docket T-1960-10, the Minister's appeal from the decision to accept the
citizenship application of Zakia Kranfouli, rendered on September 28, 2010, by
citizenship judge Gilles H. Duguay, is dismissed.
3.
Without
costs.
“Sean Harrington”
Certified
true translation
Elizabeth
Tan
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