Date: 20091026
Docket: T-620-07
Citation: 2009 FC 1081
Ottawa, Ontario, October 26, 2009
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
MOHAMMAD
IBRAHIM QURESHI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an appeal made pursuant to section 14(5) of the Citizenship Act,
R.S.C. 1985, c. C 29, section 21 of the Federal Courts Act,
R.S.C. 1985, c. F-7, and Rule 300(c) of the Federal Courts Rules, SOR/98-106,
of a decision made by Citizenship Judge Renata Brum Bozzi, dated February 12,
2007, denying the Appellant’s application for Canadian citizenship.
I. Background
A. Facts
[2]
The
Appellant, Mohammad Ibrahim Qureshi, is a thirty-six year old Pakistani citizen.
He became a permanent resident of Canada on June 27, 2000. The Appellant
was later joined by his wife and daughter in 2003. During his time in Canada, the Appellant
has rented accommodation at three separate addresses. From the date that the Appellant
entered Canada as a
permanent resident through to the date that his citizenship application was
refused, he made several trips outside the country, principally to Pakistan,
the United
Arab Emirates,
and the United
Kingdom.
[3]
After
landing in Canada, Mr. Qureshi
established a sole proprietorship in August 2001 under the name Micro Masters
and has rendered services for a local Canadian restaurant called Tandoori Time
between 2000-2005. In his Residency Questionnaire he submitted that he has also
been an active member of the Pakistani community in Canada and
volunteers at a local Muslim community organization. His daughter was also
registered at a local Islamic school between 2004-2005. Mr. Qureshi has
filed income taxes in Canada between 2000-2005.
[4]
The
Appellant applied for citizenship on June 27, 2004. On his citizenship
application, he declared that he had been absent from Canada for 104 days
between June 27, 2000 and June 27, 2004 (the material period).
[5]
The
Appellant was later convoked for a hearing before a Citizenship Judge. This
hearing took place on December 15, 2006. The judge later called the Appellant
and a phone conversation took place on December 18, 2006. A follow-up meeting
was also arranged and took place on January 5, 2007.
[6]
The
Citizenship Judge found the central issue to be whether the Appellant had
accumulated at least three years of residence in Canada within the four years
immediately preceding his citizenship application, pursuant to the residence
requirements in paragraph 5(1)(c) of the Citizenship Act (See Annex
“A”).
B. Decision
of Citizenship Judge
[7]
In
her reasons, the Citizenship Judge expressed concerns regarding the veracity of
Mr. Qureshi’s residency in Canada. She stated: “Taken as
a whole, a) the contradictions on the residence questionnaire, b) the
inconsistencies at the hearing, during the telephone conversation and at the
follow-up meeting, c) the insufficiency of tangible evidence of residency
during the material period and d) the anonymous letter, all serve to challenge the
truthfulness of the applicant’s residency.” She pointed out that the onus falls
on the applicant to demonstrate that “he was in Canada for three of
four years of his material time period,” and that Mr. Qureshi has failed to do
this on the balance of probabilities. The judge also noted that the evidence
does not demonstrate any special circumstances, and that she therefore declined
to use her discretion under s. 5(4) of the Citizenship Act (See Annex
“A”).
II. Issues
[8]
Did
the Citizenship Judge fail to observe principles of procedural fairness?
[9]
Did
the Citizenship Judge err in fact and in law in finding that the Appellant did
not meet the residency requirements under section 5(1)(c) of the Citizenship
Act?
III. Standard
of Review
A. The
Appellant’s Submissions
[10]
The
Appellant does not make any submissions as to the standard of review.
B. The
Respondent’s Submissions
[11]
The
Respondent submitted that the question of whether a person has met the
residency requirement under the Citizenship Act is a question of mixed
law and fact. As such, the Respondent argued that the appropriate standard of
review is reasonableness simpliciter. They added that Federal Court
jurisprudence states that under the standard of reasonableness, Citizenship
Judges are owed some deference by virtue of their special degree of knowledge
and experience. Therefore, deference should be shown as long as there is a
demonstrated understanding of the case law and appreciation of the facts and
their applicability to the statutory test.
[12]
The
Respondents cited the following cases to support this proposition: Farschi
v. Canada (Minister of Citizenship and Immigration), 2007 FC 487, 157
A.C.W.S. (3d) 701; Tulupnikov v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1439, 153 A.C.W.S. (3d) 1037; Tshmanga v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1579, 151 A.C.W.S. (3d) 18; Canada
(Minister of Citizenship and Immigration) v. Wall, 2005 FC 110, 137
A.C.W.S. (3d) 32; Zeng v. Canada (Minister of Citizenship and Immigration),
2004 FC 1752, 136 A.C.W.S. (3d) 15; Chen v. Canada (Minister of Citizenship
and Immigration), 2004 FC 1693, 135 A.C.W.S. (3d) 773; Rasaei v. Canada (Minister
of Citizenship and Immigration), 2004 FC 1688, 135 A.C.W.S. (3d) 774; Gunnarsson
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1592, 135
A.C.W.S. (3d) 196.
C.
Analysis
[13]
The
Respondent’s submissions only relate to issue number 2. The first issue to be
addressed concerns a matter of procedural fairness relating to the disclosure
of an anonymous letter.
(1) Procedural Fairness – Disclosure
of Anonymous Letter
[14]
The
issue relating to the disclosure of the anonymous letter is one which involves
procedural fairness. This Court has held that when dealing with the issue of
extrinsic evidence, the judge does not need to engage in an assessment of the
appropriate standard of review but should evaluate whether the rules of
procedural fairness have been adhered to: see Edobor v. Canada (Minister of
Citizenship and Immigration), 2007 FC 883, 160 A.C.W.S. (3d) 866 at
paragraph 24. Procedural fairness raises a question of law, reviewable on a
standard of correctness, and, as such, I find the standard applicable to this
issue to be one of correctness: Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190.
[15]
In
Dunsmuir, above, the Supreme Court of Canada held at paragraph 50 that:
When applying the correctness standard, a
reviewing court will not show deference to the decision maker's reasoning
process; it will rather undertake its own analysis of the question. The
analysis will bring the court to decide whether it agrees with the
determination of the decision maker; if not, the court will substitute its own
view and provide the correct answer. From the outset, the court must ask
whether the tribunal's decision was correct.
(2) Application
of Legal Test of Residency to Facts of a Particular Case
[16]
The
issue of whether a person has met the residency requirement under the Citizenship
Act requires the application of a legal test to the facts of a particular case.
Therefore, it involves a question of mixed fact and law. The cases cited by the
Respondent all support this proposition.
[17]
It
is important to note that Justice Judith Snider in Chen, above, pointed
out that the Federal Court has, in the past, applied a standard of correctness
to decisions made by Citizenship Judges. However, she went on to state that
more recent decisions of this court have reviewed citizenship appeals on a
standard of reasonableness simpliciter. In her later decision of Mueller
v. Canada (Minister of Citizenship and Immigration), 2005 FC 227, 137
A.C.W.S. (3d) 249, Justice Snider noted at paragraph 4 that judgments in
respect of the standard of review applicable to citizenship judges’ decisions
have “coalesced” around the reasonableness standard. Accordingly, she concluded
at paragraph 5 of Chen, above, that Citizenship Judges are “owed
some deference by virtue of their special degree of knowledge and experience”
and that “as long as there is a demonstrated understanding of the case law and appreciation
of the facts and their application to the statutory test, deference should be
shown.”
[18]
Furthermore,
in Choudry v. Canada (Minister of Citizenship and Immigration), 2009 FC 709,
[2009] F.C.J. No. 875 (QL), Justice Max Teitelbaum notes that in Dunsmuir,
above, the Supreme Court of Canada held that when a standard of review
applicable to a specific issue before the court is well-settled in the
jurisprudence, a court may adopt that standard of review. As such, the standard
of review applicable to this issue is reasonableness.
[19]
According
to the Supreme Court in Dunsmuir, above, reviewing a decision on the
standard of reasonableness involves an analysis of “the existence of
justification, transparency and intelligibility within the decision-making
process.” It entails probing “whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law”: see Dunsmuir, above, at paragraph 47.
IV. Analysis
A. Did
the Citizenship Judge Fail To Observe Principles Of Procedural Fairness?
(1) The
Appellant’s Submissions
[20]
The
Appellant submitted that the Citizenship Judge erred in relying on an anonymous
letter received with regard to the Appellant’s absences from Canada. Further,
the Appellant requested that a copy of the letter be provided to him in order
that he be permitted to make a full and complete answer to it.
[21]
The
Appellant submitted that because the Citizenship Judge based her decision, in
part, on the anonymous letter and its contents, and that the letter was not
fully disclosed, she breached a rule of natural justice: Karic v. Canada(Minister
of Citizenship and Immigration), 145 F.T.R. 308, 78 A.C.W.S. (3d) 1071.
(2) The
Respondent’s Submissions
[22]
The
Respondent did not make any submissions either with regard to the issue of
disclosure of the anonymous letter or the issues of natural justice and
procedural fairness.
(3) Analysis
(a) Content of Duty of Fairness in
Citizenship Cases
[23]
In
Sadykbaeva v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1018, 169 A.C.W.S (3d) 479,
Justice Yves de Montigny held that a high level of procedural fairness must
inform a Citizenship Judge’s decision-making process. In coming to this
conclusion, he noted that the Supreme Court in Knight v. Indian Head School
Division No. 19, [1990] 1 S.C.R. 653, [1990] S.C.J. No. 26 (QL) at p. 682,
advised that “the concept of procedural fairness is eminently variable and its
content is to be decided in the specific context of each case.” He relied on
the subsequent Supreme Court decision in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193
at paragraphs 22 et seq. to determine the content of the duty of fairness in
citizenship cases. In Baker, above, the court developed a list of
factors to aid in this assessment: the nature of the decision, the statutory
scheme, the importance of the decision to the individual affected, the
legitimate expectations of the individual, and the decision-maker’s choice of
procedures. Accordingly, Justice de Montigny held at paragraphs 15-16 that:
[…] a fairly high standard of procedural
fairness must inform the decision-making process followed in a citizenship
application. I am mindful of the fact that decisions to deny citizenship applications
are not final and may be appealed to the Federal Court pursuant to section
14(5) of the Citizenship Act, and that the discretion bestowed on
Citizenship Judges is quite broad and affords them a wide margin of
appreciation to decide on proper information gathering procedures.
That being said, the nature of the
decision clearly resembles an adjudication. It is based on facts concerning an
individual, which are assessed in light of reasonably objective criteria, and
the outcome applies only to the individual party. Moreover, the decision to
grant or deny citizenship is obviously of great importance to the applicant as
it affects her rights, privileges and responsibilities in this country [...]
(b) Breach
of Procedural Fairness in this Particular Case
[24]
Having
established that a high level of procedural fairness must inform a Citizenship
Judge’s decision-making process, it is important to determine whether this duty
was breached with respect to the particular facts of this case.
[25]
In
Redman v. Canada (Minister of Citizenship and Immigration), 157 F.T.R.
120, 83 A.C.W.S. (3d) 1016, an application for judicial review of a refusal to
grant permanent residence based on humanitarian and compassionate grounds, an
immigration officer received an anonymous letter which was prejudicial to the
applicants. The letter was not disclosed to them, but the immigration officer
stated that she did not consider the letter in assessing the applicants'
application. Justice Marshall Rothstein, as he then was, held that the immigration
officer did not comply with the minimal requirements of procedural fairness
applicable to humanitarian and compassionate proceedings prescribed by Shah
v. Canada (Minister of Employment and Immigration), 170 N.R. 238, 49
A.C.W.S. (3d) 119. Specifically, Justice Rothstein stated at paragraph 4
that:
[w]hen an anonymous letter prejudicial to
an applicant is received by an Immigration Officer, such letter must be
disclosed. The alternative - non-disclosure discovery by an applicant after a
negative decision has been made and then an assertion by the Immigration
Officer that the letter was not relied upon - leads to a perception of
unfairness.
[26]
Further,
he added at paragraph 5 that:
In the immigration context, anonymous
prejudicial letters are particularly nasty and offensive. In most cases, the
contents of such communications will rightly be disregarded. However, fairness
requires that when such potentially damaging information is received it must be
disclosed so that an applicant may be satisfied, before a decision is made,
that it will be disregarded, or that he or she has had an opportunity to
respond to it.
[27]
This
holding is to be contrasted with an earlier decision in Karakulak v. Canada
(Minister of Citizenship and Immigration), 119 F.T.R. 288, 66 A.C.W.S. (3d)
116, where an application for judicial review of a decision denying permanent
residence status based on humanitarian and compassionate grounds was dismissed
by the Federal Court. The applicant argued a breach of natural justice stating
that he did not receive full disclosure of anonymous letters in the Minister’s
possession. Justice John Richard, relying on the decisions in Shah and
Dasent v. Canada (Minister of Citizenship and Immigration), [1995] 1
F.C. 720, 52 A.C.W.S. (3d) 623, held that “[…] the failure to disclose
extrinsic evidence is only said to be a breach of natural justice if it is
subsequently relied on by the immigration officer.” The court concluded that
there was no evidence that the immigration officer relied on the anonymous letters
in their decision. As such, there was no breach of natural justice.
[28]
Nevertheless,
both the approach in Redman, above, and Karakulak, above, support
the proposition that a breach of natural justice occurs when an officer fails
to disclose extrinsic evidence which is subsequently relied on in their
decision. It is clear that, in Mr. Qureshi’s case, the Citizenship Judge relied
on the anonymous letter in coming to her determination. She explicitly stated
as much in her decision.
[29]
The
extent of disclosure necessary to uphold principles of procedural fairness is
unsettled in the jurisprudence. In D’Souza v. Canada (Minister of
Citizenship and Immigration), 2008 FC 57, 164 A.C.W.S. (3d) 688,
Justice Sean Harrington held that procedural fairness demanded that an
anonymous letter be shown to the individual concerned. The decision involved
judicial review of an immigration officer’s refusal of an application to
sponsor an individual based on humanitarian and compassionate considerations.
However, it is important to note that Justice Harrington qualified his findings
stating at paragraph 14 that “[i]t is not absolutely mandatory that extrinsic
evidence in this form be given to the applicant. In some instances, putting the
allegations from the anonymous source to the applicant may be sufficient.”
[30]
Similarly,
Justice Rothstein, in his earlier decision in Dasent, above, held at
paragraph 21 that “[t]he relevant point as I see it is whether the applicant
had knowledge of the information so that he or she had the opportunity to
correct prejudicial misunderstandings or misstatements.” In Liu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1253, 76 Imm. L.R. (3d) 261,
Justice James O’Reilly held at paragraph 13 that “[…]it is open to an officer
to disbelieve an applicant, but only after giving the applicant a fair chance
to respond to concerns arising from extrinsic sources.” Liu, above, involved
an application for judicial review of a visa officer's decision denying the
applicant a work permit. The visa officer discovered through anonymous tips and
an investigation that the applicants were part of an illegal recruitment
scheme.
[31]
In
general, therefore, the jurisprudence shows that applicants must be given an
opportunity to respond to matters raised in extrinsic evidence such as
anonymous letters. The non-disclosure of anonymous communications which are
prejudicial to applicants in the immigration context has generally been
considered to be a breach of procedural fairness – particularly when officers
have relied on them in their decision-making process. Indeed the court held in Edobor
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 883, 160 A.C.W.S. (3d) 866, at
paragraph 26, that “[t]he
importance of giving notice and providing an opportunity to respond to the
evidence is accentuated when the board intends to rely on the evidence to make
a decision.”
[32]
Therefore,
it is my view that Mr. Qureshi was owed disclosure of the contents of the
anonymous letter on which the Citizenship Judge relied so that he was able to
respond to the allegations contained within it.
[33]
In
this case, the Citizenship Judge did, in fact, disclose the contents of the
letter that were of concern to her and provided an opportunity for Mr. Qureshi to
both discuss and refute those areas of concern contained in the letter. I do
not accept the proposition that Mr. Qureshi was entitled to receive a copy of
the actual letter and have concluded that disclosure of the contents of the
letter coupled with the opportunity to address any allegations it may have contained
fulfills the disclosure requirements and, as such, find that there was no
breach of procedural fairness on the part of the Citizenship Judge.
[34]
It
should be noted, however, that Federal Court jurisprudence has viewed anonymous
communications as innately suspect. In D’Souza, above, the court also
noted at paragraph 15 that anonymous letters are “inherently unreliable.” The
court relied on holdings in both Canada (Minister of Citizenship and
Immigration) v. Navarette, 2006 FC 691, 149 A.C.W.S. (3d) 315, and Ray
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 731, 149 A.C.W.S. (3d) 292, in
reaching this conclusion. In Navarette, above, Justice Michel Shore at paragraph
27 held that “[t]he source and the motives as well as the information provided
by this type of letter cannot always be verified. Therefore, the information is
not necessarily trustworthy.” In that case, the court found that it was
reasonable for the Immigration and Refugee Board to refuse to give weight to the
information provided in anonymous letters.
B. Did the Citizenship Judge
Err In Law and In Fact in Finding That the Appellant
Did Not Meet the Residency Requirements
under Section 5(1)(c) Of the Citizenship Act?
(1) The
Appellant’s Submissions
[35]
The
Appellant takes the position that the Citizenship Judge misapprehended or
ignored evidence which clearly established Mr. Qureshi’s residence in Canada.
Specifically, the Appellant takes issue with the Citizenship Judge’s findings
with respect to a number of issues raised in the decision. These include
conclusions reached with respect to a lost visa, bank withdrawals, travel to
and from Pakistan, residence
issues, family medical records, inconsistencies in his residency questionnaire,
rental receipts and other matters of concern to the Citizenship Judge.
(2) The
Respondent’s Submissions
[36]
The
Respondent submits that the Citizenship Judge did not err in finding that the Appellant
did not meet the residency requirement under the Citizenship Act.
Further, the Appellant failed to demonstrate that he was in Canada for three of
four years of his material time period.
[37]
The
Respondent states that the onus to provide sufficient evidence of residency
lies on the Appellant, and that he failed to discharge this burden: Rizvi v.
Canada (Minister of
Citizenship and Immigration), 2005 FC 1641, 144 A.C.W.S. (3d) 608.
Overall, the Respondent submits that (1) there were inconsistencies in the
Appellant’s evidence and (2) the Appellant failed to provide sufficient
tangible evidence of residency during the material period.
(3) Analysis
[38]
It
is clear that the Citizenship Judge was highly suspicious of various statements
and documentation provided to her by Mr. Qureshi. Ultimately these served to
undermine his credibility and the evidence of his presence in Canada during the
material period. It was clear from the reasons that the Citizenship Judge
applied the physical presence test and found the Appellant’s evidence lacking. In
some instances the statements and inconsistencies in various documents were
relatively minor but, in my view, it was open to the Citizenship Judge to find
that, taken as a whole, they supported her finding that the Appellant was not
credible with respect to fulfilling the onus upon him to show that he was
present in Canada for the required period of time within the material period.
I would not disturb that finding and find that it was a reasonable conclusion
based on the evidence before her. I have concluded that the decision of the
Citizenship Judge falls “within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law”. Dunsmuir, above, at
paragraph 47.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. the appeal is dismissed; and
2. there is no Order as to costs.
“ D.
G. Near ”
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