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Federal Court
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Cour fédérale
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Date: 20090923
Docket: T-434-09
Citation: 2009 FC 959
Ottawa, Ontario, September 23,
2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
HICHAM
ZAMZAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Before
granting citizenship, the Citizenship Judge must be satisfied that the
applicant has resided in Canada for at least three of the four years
immediately preceding the application. Although Mr. Zamzam stated that he was
only absent from Canada for 56 days during those four years, the
Citizenship Judge was not satisfied that he had resided at least three years
here. It is with regret that I am compelled to grant Mr. Zamzam’s appeal and
send the matter back to another Citizenship Judge for reconsideration.
[2]
During
the processing of Mr. Zamzam’s application, Citizenship and Immigration Canada
became so concerned that they sent him a resident questionnaire and then served
him with a notice to appear at a hearing before the Citizenship Judge.
[3]
The
Citizenship Officer had every reason to be concerned. The work telephone number
provided by Mr. Zamzam had been used by sixty-two people at the address he
gave, and was used by applicants who gave ten other addresses. The mailing
address he provided had been used by 127 other applicants.
[4]
The
dates are what really matters here. Mr. Zamzam’s application form was signed in
June 2007. The residence questionnaire was sent to him in July 2008, and filled
in the following month.
[5]
The
residency questionnaire on the one hand states in bold print: “THE DOCUMENTS
YOU PROVIDE SHOULD COVER THE FOUR (4) YEARS IMMEDIATELY PRECEDING THE DATE OF
YOUR CITIZENSHIP APPLICATION.” However question 11 required him to list all
trips outside the country since his arrival in Canada starting
with the most recent. He limited himself to the four years preceding his
citizenship application. I can well understand why he did so. On my first
reading of the form I would have done exactly the same thing. At the hearing,
however, he was asked to produce his passports covering the period from when he
obtained permanent residency in Canada in 1999, up to the
present. He did. The documents showed several trips before the four years in
issue began to run in July 2003 and, as the Citizenship Judge said: “His
passport shows a re-entry stamp into Canada on August 11, 2008,
which he did not declare in question 11 of the residence questionnaire”
[6]
The
Citizenship Judge was not satisfied, based on the totality of the evidence
before her, that the applicant had maintained residence in Canada for the
required number of days. Mr. Zamzam is a Palestinian national, with residence
status in Saudi
Arabia,
and a Lebanese passport. During the four years in question he was either unemployed
or self-employed. Although he stated that he had worked for a year, he had no
documentation to support that claim, and he even says that he was never paid.
Apparently he does not have to work because he is a rich man’s son. He claims
to have lived for a while with his sister, and also with an aunt. Those
allegations were not corroborated. His bank accounts and other documents are
somewhat sketchy. He shared a bank account with a consultant.
[7]
However,
the Citizenship Judge also said: “…another determinative factor in reaching
this decision was the lack of credibility of the applicant.” I am unable to
segregate her statement that he failed to mention the August 2008 trip, from
the other factors which put his credibility in doubt. As a matter of law, the
four years in question ended in June 2007. The most that can be said is that
Mr. Zamzam may have misread the questionnaire. When requested he readily
produced evidence of his 2008 trip outside Canada.
[8]
I
cannot escape the notion that the Citizenship Judge erred in law by taking into
account the wrong four years. The standard of review on this point is
correctness. The Citizenship Judge does not specifically state which four years
she took into account. The reference to the 2008 trip gives the impression that
she started the count from the date that form was filled in rather than the
date of the citizenship application form which was filed the year before. I
find myself in exactly the same position Mr Justice O’Keefe found himself in in
Shakoor v. Canada (Minister of
Citizenship and Immigration), 2005 FC 776 where he said:
[39] From a perusal of the reasons, it
cannot be determined whether the citizenship judge was referring to the
extensive absences from Canada
after February 14, 2003, the date of the applicant's application, or just the
absences prior to the date of his application. I cannot tell whether the
citizenship judge took into account the absences after the date of the
application in arriving at a conclusion on the applicant's application. If she
did, it would constitute a reviewable error.
[40] Accordingly, the appeal of the
citizenship judge's decision must be allowed, as there is a live issue as to
the actual number of days the applicant was absent from Canada. I will refer the matter back to a
different citizenship judge for redetermination.
[9]
Counsel
for the applicant raised another point which was that the Citizenship Judge
erred in relying upon bank account and credit card statements and the like. He
submitted that these documents are only relevant in considering whether an
applicant has established himself in Canada in the first place, and
are not relevant when counting up the days. I do not agree. In today’s world,
most people leave a paper trail. The Citizenship judge’s analysis was an effort
to ascertain whether he had been here at all, not whether he had established
himself. This was a legitimate inquiry.
[10]
Unfortunately,
as Parliament has not seen fit to grant an appeal from the Federal Court to the
Federal Court of Appeal under the Citizenship Act, not even in
circumstances where the Court certifies a serious question of general
importance, as may be done under the Immigration and Refugee Protection Act,
three interpretations of “residence” have developed in this Court. One is that
the applicant be physically here. The others are less stringent. If one has
established oneself here then thereafter, even if away, his residence may be
where his heart is.
[11]
The
distinction was well explained by Madam Justice Tremblay-Lamer in Mizani v. Canada (Minister of
Citizenship and Immigration), 2007 FC 698, [2007] F.C.J. No. 947 at
paragraph 10 where she said:
This Court’s interpretation
of "residence" can be grouped into three categories. The first views
it as actual, physical presence in Canada for a total of three years, calculated on the
basis of a strict counting of days (Pourghasemi (Re), [1993]
F.C.J. No. 232 (QL) (T.D.)). A less stringent reading of the
residence requirement recognizes that a person can be resident in Canada, even
while temporarily absent, so long as he or she maintains a strong attachment to
Canada (Antonios E. Papadogiorgakis (Re), [1978] 2
F.C. 208 (T.D.). A third interpretation, similar to the second,
defines residence as the place where one "regularly, normally or
customarily lives" or has "centralized his or her mode of
existence" (Koo (Re), [1993] 1
F.C. 286 (T.D.) at para. 10).
[12]
Given
that the applicant stated he was only absent 56 days out of the four years, I
am satisfied that the Citizenship Judge followed the strict counting of the
days test set out by Mr. Justice Muldoon in Pourghasemi (Re),
[1993] F.C.J. No. 232, 62 F.T.R. 122.
[13]
As
the Citizenship Judge pointed out at the hearing, citizenship is a privilege,
not a right. It should not a piece of paper left in a sock drawer and only brought
out on a rainy day. Since the Citizenship Judge followed Pourghasemi,
let us recall what Mr. Justice Muldoon said:
[6] So
those who would throw in their lot with Canadians by becoming citizens must
first throw in their lot with Canadians by residing among Canadians, in Canada, during three of
the preceding four years, in order to Canadianize themselves. It is not
something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else.
[7] Many
immigrants come to Canada from theocratic and/or autocratic countries in which Canada's
Constitution, including the Canadian Charter of Rights and Freedoms with its
guaranteed freedoms of expression, speech and religion, would never be
tolerated by their tyrannical rulers. Understanding and living comfortably with
Canada's beautiful freedoms and their minor limitations takes some getting used
to - at least three years of getting used to pursuant to paragraph 5(1)(c) of
the Citizenship Act.
[14]
Having
been put on notice that were it not for this lack of clarity with respect to
the four-year count this appeal would be dismissed, it would well behoove Mr.
Zamzam to provide much better evidence of his physical presence in Canada for
the four years immediately preceding his application which is dated 18 June
2007, for instance, from his aunt with whom he claims to have lived, his sister
with whom he shared an apartment for a short while and the employer for whom he
worked without pay for a year.
ORDER
THIS COURT
ORDERS that:
1.
The
appeal is granted.
2.
The
matter is referred back to another Citizenship Judge for redetermination.
3.
There
shall be no order as to costs.
“Sean Harrington”
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