Date: 20071212
Docket: T-1731-06
Citation: 2007 FC 1311
Ottawa, Ontario, December 12, 2007
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
ZHIJUN
ZHENG
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Zhijun
Zheng is a self-represented applicant (the Applicant). He describes his
application as one for judicial review but, in fact, it is an appeal under
subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act).
The appeal is from a decision of a Citizenship Judge dated June 19, 2006
(the Decision) in which he concluded that he did not believe the Applicant’s
evidence about the time he spent as a resident of Canada.
BACKGROUND
[2]
The
Applicant became a permanent resident on September 18, 2001. Three years
and three days later on September 21, 2004, the Applicant applied
for citizenship and declared 1099 days of residence (the Period). This meant
that the Applicant claimed he had not left Canada after he had become a
permanent resident.
STANDARD OF REVIEW
[3]
In
my view, the question of whether an applicant for Citizenship meets the 1095 day
residency requirement in paragraph 5(1)(c) of the Act is a mixed question of
fact and law in which fact finding is the predominant task. The specific issue
in this case is credibility and it calls for a deferential approach. However,
less deference is suggested by the provision for an appeal, by the fact that
the inquiry is focused on the Applicant, and by the fact that the Citizenship Judge
does not possess relative expertise.
[4]
For
these reasons, I have concluded that reasonableness simpliciter is the
appropriate standard of review.
THE DECISION
[5]
The
Citizenship Judge did not believe that the Applicant had never been absent from
Canada during the
Period. He so concluded because the Applicant was only employed for sixteen
months in Canada during the Period and earned only $25,201, because he had a
sister who lived in Long Island, NY, whose telephone number he had provided on
his citizenship application as his “home” number, because one of the letters
from a landlord did not appear to be signed, because he had no immediate family
in Canada and because a phone number he had subsequently provided on his Residence
Questionnaire proved to be unlisted.
THE JUDICIAL REVIEW
HEARING
[6]
In
his oral submissions before this Court, the Applicant provided background
information about the hearing before the Citizenship Judge and about contacts
made by Citizenship and Immigration Officers with his landlords. The Applicant
also gave explanations which addressed the problems the Citizenship Judge had identified
with his documents and evidence. However, the Applicant acknowledged that the
information in these submissions was not evidence and I have therefore not
considered it in reaching this decision.
[7]
Further,
the Applicant was quick to suggest that the processing of his application for
citizenship was delayed because the Citizenship Judge and Officials wanted
money. However in response to questions from the Court, the Applicant
acknowledged that no one had ever asked him for money, that he had never paid
anyone and that his allegations were mere speculation.
[8]
Although
the Applicant brought an interpreter to the hearing, he did not often ask for
his assistance. For the most part, the Applicant elected to make his
submissions and answer the Court’s questions without the interpreter’s help.
Once or twice, the Court asked the interpreter to translate a question or a
text from a document to ensure that the Applicant understood. I am satisfied
that the Applicant fully comprehended the proceeding. His manner throughout was
somewhat frantic but not confused and always polite.
THE ISSUES
[9]
The
Applicant said:
(i)
That
the Citizenship Officer noted that the Applicant had been in Canada for 1099
days, and that this notation constituted a decision that the days he declared
had been accepted. He said that once his declared days had been noted, it was no
longer open to the Officer to send him a Residence Questionnaire and it was not
open to the Citizenship Judge to conclude that he had not met the residency
requirement.
(ii)
That
the Citizenship Judge’s decision as reflected in the Notice to the Minister of
June 19, 2006 was inconsistent because it showed his time in Canada as
1099 days (which was over the required minimum of 1095 days) in the bottom box
in the group of boxes at the top right of the form, and yet, the Citizenship
Judge ticked the box in Part I of the form which showed that he was not
satisfied that the Applicant had complied with the residence requirements.
(iii)
That,
because counsel for the Respondent did not cross-examine him on his affidavit
of May 29, 2007, which exhibited his passport, the Respondent by its
inaction admitted that he was resident in Canada for 1099 days.
(iv)
That
he was unfairly treated because the Citizenship Judge did not tell him what
documents and explanations were needed to establish residence.
DISCUSSION
(i) The
Citizenship Officer’ Role
[10]
The
Citizenship Officer who interviewed the Applicant on July 12, 2005 made
notes on Part 1 of the Citizenship Application Review form. The form shows that
he recorded the 1099 days of residence which the Applicant had declared. However,
the Officer is not empowered to make a decision about either the accuracy of
the declared days or whether the Applicant met the residency requirements under
paragraph 5(1)(c) of the Act. Accordingly, the fact that he recorded the
Applicant’s declared days did not mean that the Applicant had met the residency
requirements. For this reason, it was lawful to send the Applicant a Residence
Questionnaire and lawful for the Applicant’s application to be referred to a
hearing before a Citizenship Judge.
(ii) Was
the Decision Internally Inconsistent?
[11]
I
am persuaded by the Respondent’s submission that the boxes on the top right
side of the Notice to the Minister dated June 19, 2006 do not form part of
the Citizenship Judge’s decision. Rather they provide an overview of the status
of various aspects of the Applicant’s Application for Citizenship.
[12]
For
this reason, I have concluded that the Notice Form does not contain
inconsistent decisions. The only decision is in the ticked box which shows that
the residency requirement was not met.
(iii) Was
a Failure to Cross-Examine an Admission?
[13]
There
is no requirement to cross-examine a deponent on his or her affidavit and no
deemed admissions flow from a failure to cross-examine.
(iv) The
Role of the Citizenship Judge
[14]
The
Residence Questionnaire listed documents to be provided and the Applicant was
given extra time to have income tax returns prepared in support of his
application. The Applicant says that because he was not asked for more
information, he assumed that the material he provided was satisfactory. He
complains that he was not given an opportunity to provide additional material.
However, the Citizenship Judge is not obligated to provide an applicant with a
running commentary about the adequacy of his documentation. The onus is on the
applicant to establish residence. Once the applicant completes his case by
submitting his documents, the Citizenship Judge considers the material and
makes a ruling which is final subject only to an appeal. I have found no
unfairness in this process.
[15]
For
all these reasons, I have concluded that the Citizenship Judge’s decision about
the Applicant’s lack of credibility was reasonable and that the procedures
followed during the processing of the Applicant’s application for citizenship
were fair.
JUDGMENT
UPON reviewing
the material filed and the post hearing letter from counsel for the Respondent
dated August 30, 2007;
AND UPON hearing the
submissions of the Applicant and of counsel for the Respondent in Toronto on
Wednesday, August 29, 2007;
NOW THEREFORE THIS COURT
ORDERS AND ADJUDGES that, for the
reasons given above, the appeal is hereby dismissed.
As well, at the request of
counsel for the Respondent, the style of cause is amended to show the Minister
of Citizenship and Immigration as the sole respondent.
“Sandra
J. Simpson”
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