Date: 20090914
Docket: T-1805-08
Citation: 2009 FC 905
OTTAWA, Ontario, September 14, 2009
PRESENT: The Honourable Louis S. Tannenbaum
BETWEEN:
FERDOUS
ULLAH SOHEL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application under subsection 14(5) of the Citizenship Act, R.S.C.
1985, c. C-29 (the “Act”), for judicial review of the decision of a citizenship
judge rendered September 17, 2008, wherein the judge determined that the
applicant did not meet the residence requirement provided at paragraph 5(1)(c)
of the Act and had not filed any material in support of her making a favourable
recommendation for the use of discretion under subsection 5(3) and (4) of the
Act.
[2]
The
applicant, Mr. Ferdous Ullah Sohel, is a citizen of Bangladesh. He arrived
in Canada and was
landed on October 21, 2003. Prior to this date, he obtained a Master’s degree
in Economics at the University of Houston and worked in the United States as a
Financial Analyst.
[3]
On
October 24, 2003, within days of landing in Canada, Mr. Sohel
married Imrana Islam. According to the evidence on file, Mr. Sohel’s wife
returned to Houston,
Texas, United
States,
where she was studying Computer Science and resided. The applicant’s wife was
landed in Canada on May 27,
2005, stayed a few weeks then returned to the USA to complete
her studies. Their daughter was born on March 27, 2007 in the United
States,
where she stayed with her mother.
[4]
The
applicant applied for Canadian citizenship on November 13, 2006. The material
time period considered by the judge in order to assess his residence ran from
October 21, 2003 to November 13, 2006.
[5]
During
the relevant residency period (1,118 days), the applicant declared 23 days of
absences from Canada, leaving on
its face a claim of 1,095 days of physical presence.
[6]
The
citizenship judge stated that she was not satisfied with the documents
submitted by the applicant in support of his residence in Canada and indicated
that she doubted the veracity of the absence dates indicated by the applicant.
She concluded that she could not rely on the evidence provided to accurately
reflect all of the applicant’s absences from Canada and his
residency here during the relevant period.
[7]
Moreover,
considering the lack of supporting evidence, she found that the use of her
discretion, pursuant to subsections 5(1), 5(3) and 5(4) of the Act, was not
warranted.
Standard of Review
[8]
When
the issue involves matters of facts or law applied to facts, a judicial review application
is not to be granted if the decision falls within the range of reasonable
assessments of these facts. (See Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190; Canada (Minister of Citizenship and Immigration)
v. Khosa,
2009 SCC 12).
Quantitative test for
residency
[9]
The
citizenship judge has discretion when deciding how he or she will determine and
assess an applicant’s residence. Justice Eleanor R. Dawson explains this
discretion as follows:
3 The term "residence" is not defined under the Act or the Citizenship Regulations, 1993, SOR/93-246. The Court has
effectively established two types of tests for residence: one quantitative and the other qualitative.
The first requires an applicant to be physically present in Canada for a total
of three years, calculated on the basis of a strict counting of days. See: Pourghasemi (Re) (1993), 62 F.T.R. 122 (T.D.). The second
adopts a more contextual and flexible reading of residence, requiring an applicant to have a strong
connection to Canada or to centralize his or her mode of living in Canada. See:
Papadogiorgakis (Re), [1978] 2 F.C. 208 (T.D.), and Koo (Re), [1993] 1 F.C. 286 (T.D.). It is open to a
citizenship judge to choose one of these recognized approaches, and it is the
role of the Court, on judicial review, to determine whether the chosen test has
been properly applied. See: Lam v. Canada (Minister of Citizenship and
Immigration) (1999), 164 F.T.R. 177 (T.D.) at paragraph 14.
4 In this case, the citizenship
judge adopted the test set forth in Pourghasemi.
This is evidenced by her express reference to the question at issue:
"[h]as the applicant met the residency requirement of 1095 days in Canada
and is the information provided credible?"
(Chen v. Canada
(Minister of Citizenship and Immigration), 2008 FC 763)
[10]
Despite
the applicant’s argument to the effect that the test used was the qualitative
one, in the case at bar, and as noted in Chen, above, the citizenship
judge adopted the quantitative approach when assessing Mr. Sohel’s residence in
Canada.
[11]
The
applicant bears the onus to provide sufficient evidence to establish that he
meets the residency requirement of the Act (Maharatnam v. Canada (Minister of
Citizenship and Immigration), T-668-99, at para. 5). Statements made in
an application for citizenship need not be taken at face value. See: Bains
v. Canada (Minister of
Citizenship and Immigration), [2001] 1 F.C. 284 (T.D.) at paragraph 27.
[12]
The
citizenship judge noted in her decision that the applicant
[…]
failed to provide critical information such as an updated residence
questionnaire and motor vehicle registration information as requested. This
failure and conflicting information provided lead me to also question the
credibility of your statements of physical presence in Canada.
[…] I
do not find that all the pieces of your oral and written presentation fit well
together. Based on the evidence before me I am not persuaded on the balance of
probabilities that you have been physically present in Canada for 1,095 days during
the period under review.
I have
based my decision on the absence of supporting documentation, your failure to
provide consistent and convincing information as referred earlier and your
failure to provide acceptable proof of residency in the relevant period.
(Citizenship judge’s decision, Applicant’s
Record, p. 8)
[13]
In
her decision, the citizenship judge noted several inconsistencies.
Particularly, she noted that on his original Residency Questionnaire (dated May
22, 2007), Mr. Sohel stated that his wife and daughter were living in Canada
since 2005 and 2007 respectively; however, he stated in his statutory
declaration that his wife was living “more-or-less continuously in the United
States”, first as a student and then with a work permit. This inconsistency was
also present between the statutory declaration and the information in the FOSS
notes. Moreover, the applicant failed to submit an updated Residency
Questionnaire, confirming the whereabouts of his family, as requested. The
citizenship judge also noted that Mr. Sohel was unable to provide convincing
information nor did he provide acceptable proof of residency in the relevant
period – consequently making an adverse credibility finding.
[14]
As
the citizenship judge found, I find it rather difficult to believe that Mr.
Sohel would not have returned to the United States following his landing
(See Tribunal Record, pp. 199-202). Recognizing that the citizenship judge’s
decisions are given much deference, I believe, based on the evidence before me,
that the reasons for finding that Mr. Sohel had not discharged his onus were
intelligible and were justified by the evidence. The decision is defensible in
fact and law, and so falls within the range of acceptable outcomes. The
decision was, therefore, reasonable.
[15]
The
citizenship judge requested additional evidence in order to clarify the
applicant’s residency in Canada (i.e. proof of employment in Canada, vehicle
registration documents, rental receipts). This information was not provided by
the applicant and, based on the evidence in the file, one is unable to clearly
determine that the applicant remained in Canada the entire
material time period, minus his trip to Bangladesh, as he has
claimed.
Conclusion
[16]
Based
on the evidence that was before the citizenship judge, it was not unreasonable
for her to find that there were serious credibility concerns and to doubt the
veracity of the information in the applicant’s citizenship application.
[17]
In
view of my conclusion as stated above, it is not necessary that I consider the
additional ground raised by the Minister in counsel’s letter dated July 23,
2009 to the effect that the notice of appeal was filed too late.
[18]
For
the reasons outlined herein, the application for judicial review will be
dismissed without costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed without costs.
"Louis S. Tannenbaum"
Authorities consulted by the
Court
1.
Ahmed
v. Canada (M.C.I.), 2002 FCT
1067
2.
Berk
v. Canada (M.C.I.), 2001 FCT
1015
3.
Canada (M.C.I.) v.
Dhaliwal,
2008 FC 797
4.
Chan
v. Canada, [2002]
F.C.J. No. 376
5.
Dieng
v. Canada (M.C.I.), 2009 FC 217
6.
El
Fihri v. Canada (M.C.I.), 2005 FC 1106
7.
Goudimenko
v. Canada, [2002]
F.C.J. No. 581
8.
Jreige
v. Canada, [1999]
F.C.J. No. 1469
9.
Lam
v. Canada (M.C.I.) (1999), 164
F.T.R. 177
10.
Lama
v. Canada (M.C.I.), 2005 FC 461
11.
Pourzand
v. Canada (M.C.I.), [2008] F.C.J. No. 485
12.
Re
Koo,
[1992] F.C.J. No.1107
13.
Re
Pourghasemi (1993), 19 Imm. L.R. (2d) 259 (F.C.T.D.)
14.
Rizvi
v. Canada (M.C.I.), 2005 FC 1641
15.
Wong
v. Canada (M.C.I.), 2008 FC 731
16.
Zhu
v. Canada (M.C.I.), 2008 FC 5
17.
Sketchley
v. Canada (Attorney General), [2005] F.C.J. No. 2056
18.
Haj-Kamali
v. Canada (M.C.I.), 2007 FC 102
19.
Seiffert
v. Canada (M.C.I.), 2005 FC 1072
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1805-08
STYLE OF CAUSE: Ferdous
Ullah Sohel v. M.C.I.
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: July
16, 2009
REASONS FOR JUDGMENT: TANNENBAUM
D.J.
DATED: September
14, 2009
APPEARANCES:
|
Mr. Mario D.
Bellissimo
|
FOR THE APPLICANT
|
|
Ms. Eleanor
Elstub
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Mario D.
Bellissimo
Barrister
& Solicitor
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.,
Deputy
Attorney General of Canadfa
|
FOR THE RESPONDENT
|
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