Date: 20091104
Docket: T-1743-08
Citation: 2009 FC 1132
Montréal, Quebec, November 4,
2009
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
MOHAMED
KHALFALLAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an appeal by Mohamed
Khalfallah (the “Applicant”) pursuant to subsection 14(5) of the Citizenship
Act, R.S.C. 1985, c. C-29, from the decision of a Citizenship judge, dated
July 8, 2008, denying his application for citizenship.
BACKGROUND FACTS
[2]
The
Applicant is a citizen of Tunisia. He came to Canada in September 2000 as a
student, and became a permanent resident in 2002. He applied for the Canadian
citizenship in December of 2004.
[3]
The
Applicant declared only a 31-day absence in 2004 and claimed to have been
present in Canada for the remainder of the
material period.
[4]
The
Citizenship judge interviewed the Applicant on June 25, 2008. What happened at
the hearing is a matter of controversy.
[5]
According to the
Applicant he tendered a number of documents to the Citizenship judge, who refused
to accept them. The Applicant also claims that he offered to produce witnesses
who could testify to his presence in Canada, but the Citizenship judge refused that
too.
[6]
The Applicant says
that the Citizenship judge “a avancé
qu’il ne voyait aucun problème”
in the Applicant’s file. He further says that the Citizenship judge asked him
to submit bank statements, in order to prove payments of his rent, and indicated
that upon submission of these documents, he would grant the citizenship
application “car
il n’y avait pas d’autres problèmes”
with it.
DECISION UNDER REVIEW
[7]
The
Citizenship judge denied the Applicant’s application in a letter dated
September 16, 2008, because he was not satisfied, on a balance of probabilities,
that the Applicant actually was in Canada
for the prescribed number of days. More specifically, while he accepted the
Applicant’s submission that he lived in Montréal and studied at UQAM between
his arrival in Canada and the fall of 2002, he felt
that the evidence at his disposal was insufficient to demonstrate that the Applicant
was living in Montréal between the fall of 2002 and December 2004.
[8]
The
Citizenship judge noted, first, that the Applicant did not submit a valid passport
for the relevant period, claiming it had been destroyed. However, for the
period covering the academic years 2000 – 2001 and 2001 – 2002, the Applicant had
submitted UQAM transcripts, and he was satisfied that he was indeed in Canada
during this time, and up until November 2002. At that time, the Applicant changed
his address, but the Citizenship judge doubted whether he actually lived at his
new address – or anywhere in Canada – after November 2002.
[9]
Given the
impossibility of relying on passport stamps to verify whether the Applicant was
actually in Canada, the Citizenship judge tried
to verify the Applicant’s residency by looking at his bank statements.
[10]
These bank
statements were, in the opinion of the Citizenship judge, “very revealing.”
They showed that the rent appearing on the lease submitted by the Applicant was
only paid from his personal account in December 2002 and the first three months
of 2003, and from his company account in April 2003. Furthermore, for the year
2004, transactions involving both accounts were concentrated in July and
August. The accounts “show very little activity over 10 months of the year.” He
concluded that “[t]he bank accounts are very damaging to the applicant’s claim
of having been physically present in Canada in 2004 on the days he claims he
was.”
[11]
Thus, he
concluded that the Applicant had not convinced him that he was in Canada for the required number of
days, and therefore denied his application.
ISSUES
1) Did the
Citizenship judge breach the rules of natural justice?
2) Did the Citizenship judge make
a negative credibility finding without supporting reasons?
ANALYSIS
1) Did the Citizenship judge breach
the rules of natural justice?
[12]
The Applicant
claims that the Citizenship judge refused to look at the documentary evidence
which he tendered at the hearing, or to hear witnesses suggested by the
Applicant. This amounted to a breach of the audi alteram partem rule, and thus of the duty of
procedural fairness that was owed to him.
[13]
The
Minister notes that some of the documents which the Applicant claims to have
tendered to the Citizenship judge were already in the record, while others were
irrelevant, either because they constituted evidence of claims which the
Citizenship judge accepted anyway, or did not relate to the material period.
[14]
Even
assuming, for the moment, that the Applicant’s summary of his interview with the
Citizenship judge is accurate, a careful reading of that document reveals that the
Citizenship judge did not simply dismiss the Applicant’s offer to provide
documents evidencing his presence in Canada
from November 2002 to December 2004.
[15]
In his
affidavit t he Applicant writes that the Citizenship judge asked him “[e]st-ce
que vous avez d’autres documents à me montrer?” The Applicant tendered rent
payment receipts for December 2002 and January 2003, as well as September 2005.
The Applicant does not claim having offered any documents for most of 2003 or
2004. He states, at p. 9, ibid., that he offered documents relating
to a sandwich stall he operated in the summers of 2003 and 2004, but the
Citizenship judge refused to look at them.
[16]
The Applicant
also offered phone and electricity bills, but the judge rejected them because
“ça ne couvre pas la période en question.” The Applicant offered bank
statements from 2005, but The Citizenship judge was not interested in them.
Instead, he accepted the Applicant’s offer to submit, at a later date,
statements for 2003 and 2004. This is in no way contradictory with the
Citizenship judge’s version of the events.
[17]
Thus the
only documents from the relevant period which the Applicant says the
Citizenship judge rejected related to his sandwich stall and photocopies of
cheques made to Revenu Québec. In my view, this is much too little to sustain
the Applicant’s argument. These documents could not possibly have demonstrated
the Applicant’s presence in Canada for more than a few days, so
that their relevance to the Applicant’s application is minimal. Even if the Applicant
really tendered them, and the Citizenship judge really refused to look at them,
I do not think that it amounted to a refusal to consider relevant evidence.
[18]
As for the argument
that the interview was too short, I agree with the comment of Justice Teitelbaum in Rusli
v. Canada (Minister of Citizenship and
Immigration)
(1997), 127 F.T.R. 13, [1997] F.C.J. No. 249 (QL) at paras. 8 and 9, that “there are no time trials for the rule of audi alteram partem or the right to be heard … It is the
content of the interview, rather than its length that is a better indicator of
whether the rules of fairness and natural justice were respected.” Thus,
I could not find any evidence that the length of the interview disadvantaged
the Applicant.
[19]
The Applicant
further claims that the Citizenship judge gave him the impression that his
application would be accepted. Relying on Baker v. Canada (Minister of
Citizenship and Immigration),
[1999] 2 S.C.R. 817 (“Baker”), the Applicant argues that the Citizenship
judge’s subsequent refusal to do so amounted to a breach of legitimate
expectations, which entitles him to a new hearing at which all evidence will be
considered.
[20]
The Minister
submits that the Applicant relies on his impressions rather than on facts, and
that these impressions are illogical, since the Citizenship judge could not
have told the Applicant that he would approve his application “on the basis of
documents that the judge had yet to see … Why even bother requesting them
then?”
[21]
As the
Supreme Court of Canada indicated in Baker, legitimate expectations
cannot relate to a substantive outcome. And, as the Minister points out, it
seems utterly implausible that the Citizenship judge would have said that “dès que j’aurai [les relevés bancaires], je
vous attribuerai votre citoyenneté avec [sic] sans aucun problème.” [My emphasis.] Surely, if the Citizenship
judge asked for these documents, it was to examine them, and determine whether
they supported the Applicant’s allegations. That the Applicant wanted to hear,
and perhaps heard, something else does not change what could and what could not
have been said.
2) Did the Citizenship judge make
a negative credibility finding without supporting reasons?
[22]
The Applicant
argues that he submitted sufficient evidence to demonstrate his presence in Canada, and thus the only way the
Citizenship judge could find otherwise was by making an implicit credibility
finding.
[23]
The
Minister submits that gaps in the Applicant’s bank statements reveal more than
mere “weak economic performance” as the Applicant argues. The Citizenship judge
gave sufficient reasons for his findings, and this Court should not
second-guess his factual findings, which is, in effect, what the Applicant is
asking it to do. I agree.
[24]
As
the Minister points out, the Citizenship judge found large “gaps” in the Applicant’s
bank statements. It is common ground that the Citizenship judge asked for the Applicant’s
bank statements in order to verify whether the Applicant paid the rent at his
alleged address. They did not show that he did. The Citizenship judge’s decision
is, then based on insufficiency of the evidence submitted by the Applicant. It may
be that the Applicant was in Canada during the relevant period,
but he failed to submit evidence to demonstrate that this was so. The Citizenship
judge’s decision is justified, transparent and intelligible, and defensible in
respect of the facts and the law (see Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para.
47).
[25]
For these reasons, the appeal
will be dismissed.
JUDGMENT
THIS
COURT ORDERS that the appeal be dismissed.
“Danièle
Tremblay-Lamer”
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