Date: 20110303
Docket: T-912-10
Citation: 2011 FC 256
Ottawa, Ontario, March 3, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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SAMARA MORCHED RAAD
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an appeal under subsection 14(5) of the Citizenship Act,
R.S.C. 1985, c. C-29 (Act) of a decision of a Citizenship
Judge, dated 26 April 2010 (Decision), in which the Citizenship Judge
refused to grant the Applicant Canadian citizenship on the basis that she had
not met the residency requirement under paragraph 5(1)(c) of the Act.
BACKGROUND
[2]
The Applicant
is forty-eight years of age. She first entered Canada on a visitor’s visa on 24 March 2003 and
claimed refugee protection. Her husband is a US citizen permanently residing in the US. They have one child
together, a citizen of Canada born in February 2004.
This son has developmental challenges, so the Applicant does not work outside
the home. She herself is presently being treated for various medical
conditions, which she claims affect her memory.
[3]
The Applicant
became a permanent resident on 9 February 2006. She submitted a Canadian
citizenship application on 5 May 2008; the relevant time period for the purpose
of her residency requirement is 5 May 2004 to 4 May 2008. The Applicant
submitted a residence questionnaire on 13 January 2009.
[4]
The Applicant
currently resides in Windsor, Ontario, and states that she has physically resided in Canada since she first entered
the country on 24 March 2003. Her husband financially supports the family and
the Applicant accesses the money via a joint bank account at a Canadian bank.
The Applicant and her child do not reside with her husband because of
immigration regulation. On her citizenship application, the Applicant declared
her marital status as “separated” because she and her husband were physically
separated. The Applicant claims that her husband is not able to spend much time
in Canada, as he suffers from
post-polio syndrome. Therefore, the husband drives the Applicant and their son
to and from Canada for family visits, which most often take place in the US.
[5]
The
husband applied for US permanent resident visas for the Applicant and their
son. The Applicant told the Citizenship Judge that he did this on his own
initiative without asking if she wanted it. She also told the Citizenship Judge
that her approved permanent resident visa had expired while she was awaiting
approval of her son’s and that she had not reapplied for a new permanent
resident visa.
[6]
On
her citizenship application (submitted 5 May 2008), the Applicant declared that
she was absent from Canada on the following dates during
the relevant time period:
i) 26 May 2007 – 30
June 2007 (35 days);
ii) 27 August 2007 – 1
September 2007 (5 days);
iii) 22 November 2007 –
24 November 2007 (2 days).
[7]
The Applicant
was absent from Canada on the following dates,
after the relevant time period:
i) 5 May 2008
(less than a day);
ii) 6 May 2008 –
15 May 2008;
iii) 17 May 2008
– 3 July 2008;
iv) 5 July 2008
(less than a day).
[8]
The
Citizenship Judge interviewed the Applicant on 30 March 2010. She found that,
within the four years immediately preceding the Applicant’s citizenship application,
the Applicant had not been physically present in Canada for the 1095-day
minimum, as set out in paragraph 5(1)(c) of the Act. The Citizenship
Judge, therefore, rendered a negative Decision on 26 April 2010. This is the
Decision under review.
[9]
Unaware
that the Decision had been rendered, on 27 April 2010 the Applicant submitted
to the local Citizenship and Immigration Canada office additional documents in
support of her application.
DECISION UNDER REVIEW
[10]
Of
the three residency tests that have been promulgated in the Federal Court’s
jurisprudence, the Citizenship Judge in the instant case chose the “strict
physical presence” test as set forth in Re Pourghasemi (1993), 62 FTR
122, 19 Imm LR (2d) 259.
[11]
The
Citizenship Judge determined that the principal issue was whether the Applicant
had accumulated at least three years (1,095) days of residence in Canada within
the four years (1,460 days) immediately preceding the date of her application
for Canadian citizenship (5 May 2008) and whether the information she provided
was credible.
[12]
The
Citizenship Judge identified the main problem with the Applicant’s citizenship
application as a lack of objective evidence showing an “audit trail” of a life
in Canada during the relevant
time period, namely 5 May 2004 – 4 May 2008.
[13]
In
matters of residency, the onus falls on the Applicant to demonstrate that he or
she has resided in the country for three of the four years in the relevant
period and, thereby, meets the requirements of s. 5(1)(c) of the Act.
See Maharatnam v Canada (Minister of Citizenship and Immigration) (2000), 96 ACWS (3d)
198, [2000] FCJ No 405 (TD) (QL). The Citizenship Judge found that, although
the Applicant had declared 42 days of absence and 1096 days of physical
presence in Canada for the relevant period,
she was not persuaded that this was accurate for the following reasons.
[14]
First,
the Applicant’s passport bore several undeclared stamps for entry to the US where her former
husband was resident. Also, because the Applicant has a B1/B2 visitor visa for
the US, not all entry and exit
stamps are recorded at the border. For that reason, US absences as declared
cannot be verified through passport review.
[15]
The
Citizenship Judge also found the Applicant’s responses to “simple” questions to
be “very vague and contradictory.” The Citizenship Judge was not satisfied with
the Applicant’s response to, inter alia, the following inquiries: why
the Applicant had two addresses at the same time; why she disconnected her
telephone service before one of her trips to the US; why she declared that she
had left Canada on 17 May 2008 when it was clear that she had left on 6 May
2008; and why several of her rent receipts are issued to “Tamara” Raad. When
the Citizenship Judge asked the Applicant when her bank account in Windsor became a joint account
with her husband, the Applicant could not remember that she had explained
earlier that her husband did this to ensure that there was enough money to
support his son.
[16]
The
Citizenship Judge also noted that the “attendance sheets” submitted to show the
Applicant’s participation in the LINC program at the YMCA and the New
Canadians’ Centre for Excellence in Windsor and Essex County show “several
absences and several times where the programs administers (sic) were
unable to reach [the Applicant] during the relevant time period.”
[17]
The
Citizenship Judge concluded as follows:
Having
reviewed all of the documentation submitted by the applicant, including the
documentation submitted with the applicant’s residency questionnaire, having
personally interviewed the applicant and for the reasons above, I am not
satisfied, on the balance of probabilities, that the information provided by
the applicant accurately reflects the number of days that the applicant was
physically present in Canada.
ISSUES
[18]
The
following issues arise on this application:
1)
Did
the Citizenship Judge err in assessing whether the Applicant meets the
residency requirement? More particularly, did the Citizenship Judge make
erroneous findings of fact and ignore relevant evidence?
2)
Does
the Citizenship Judge’s choice of residency test, taken together with other
errors, give rise to a reasonable apprehension of bias?
STATUTORY PROVISIONS
[19]
The
following provisions of the Act are relevant to these proceedings:
Grant of
citizenship
5. (1) The Minister shall grant citizenship
to any person who
(a) makes
application for citizenship;
(b) is
eighteen years of age or over;
(c) is a
permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act, and has, within the four years immediately
preceding the date of his or her application, accumulated at least three
years of residence in Canada calculated in the following manner:
(i) for every
day during which the person was resident in Canada before his lawful
admission to Canada for permanent residence the person shall be deemed to
have accumulated one-half of a day of residence, and
(ii) for every
day during which the person was resident in Canada after his lawful admission
to Canada for permanent residence the person shall be deemed to have
accumulated one day of residence;
[…]
Appeal
14 (5) The Minister or the Applicant may
appeal to the Court from the decision of the Citizenship Judge under
subsection (2) by filing a notice of appeal in the Registry of the Court
within sixty days after the day on which
(a) the
Citizenship Judge approved the application under subsection (2); or
(b) notice was
mailed or otherwise given under subsection (3) with respect to the
application.
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Attribution
de la citoyenneté
5.
(1) Le
ministre attribue la citoyenneté à toute personne qui, à la fois :
a) en fait la
demande;
b) est âgée
d’au moins dix-huit ans;
c)
est un résident permanent au sens du paragraphe 2(1) de la Loi sur
l’immigration et la protection des réfugiés et a, dans les quatre ans qui ont
précédé la date de sa demande, résidé au Canada pendant au moins trois ans en
tout, la durée de sa résidence étant calculée de la manière suivante :
(i)
un demi-jour pour chaque jour de résidence au Canada avant son admission à
titre de résident permanent,
(ii)
un jour pour chaque jour de résidence au Canada après son admission à titre
de résident permanent;
[…]
Appel
14
(5) Le
ministre et le demandeur peuvent interjeter appel de la décision du juge de la
citoyenneté en déposant un avis d’appel au greffe de la Cour dans les
soixante jours suivant la date, selon le cas :
a)
de l’approbation de la demande;
b)
de la communication, par courrier ou tout autre moyen, de la décision de
rejet.
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STANDARD OF REVIEW
[20]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to the particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
[21]
There
has been general consensus in the jurisprudence of this Court that the
applicable standard of review for a Citizenship Judge’s determination of
whether an Applicant meets the residency requirement, which is a question of
mixed fact and law, is reasonableness simpliciter. See Canada (Minister of
Citizenship and Immigration) v Chang, 2003 FC 1472; Rizvi v Canada (Minister of
Citizenship and Immigration), 2005
FC 1641; Chen v Canada (Minister of Citizenship and Immigration), 2006
FC 85; and Zhao v Canada (Minister of Citizenship and Immigration), 2006 FC 1536. In light
of Dunsmuir, above, wherein the Supreme Court of Canada collapsed
reasonableness simpliciter and patent unreasonableness into a single standard
of reasonableness, I find that the applicable standard of review regarding the
Citizenship Judge’s determination of whether the Applicant met the residency
requirement is reasonableness.
[22]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] 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. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
[23]
The Applicant
has raised a procedural fairness issue before the Court, that is, whether the
Citizenship Judge’s choice of residency test gives rise to a reasonable
apprehension of bias. The test for reasonable apprehension of bias was
articulated by Justice de Grandpré in Committee for Justice and Liberty v National Energy Board, [1978] 1 S.C.R. 369, and
has been consistently endorsed by the Supreme Court of Canada. Justice de
Grandpré stated, at page 394:
…the
apprehension of bias must be a reasonable one, held by reasonable and
right-minded persons, applying themselves to the question and obtaining thereon
the required information… [T]hat test is “what would an informed person,
viewing the matter realistically and practically – and having thought the
matter through – conclude. Would he think that it is more likely than not that
[the decision-maker], whether consciously or unconsciously, would not decide
fairly.”
Issues of procedural fairness are reviewable on
a standard of correctness. See Dunsmuir, above, at paragraphs 126 and
129; and Dhaliwal v Canada (Minister of Citizenship and Immigration), 2010 FC 7 at paragraph
27.
ARGUMENTS
The Applicant
Erroneous Finding of
Fact
[24]
The Applicant
contends that the Citizenship Judge made two findings of fact that were in
error.
[25]
First,
the Citizenship Judge inspected the Applicant’s passport at the citizenship
interview, and then stated in the Decision that “there were several undeclared
stamps for entry to the US.” This is incorrect.
There were two—not “several”—undeclared stamps in the passport, both of which
occurred after the relevant period on 5 May 2008 and 5 July 2008.
[26]
Justice
John O’Keefe found in Shakoor v Canada (Minister of Citizenship and Immigration), 2005 FC 776 at
paragraphs 39 and 40, that taking into account absences that occurred after the
relevant period constitutes a reviewable error:
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.
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. [emphasis added]
[27]
Second,
with respect to the Applicant’s attendance in the LINC program at the YMCA and
the New Canadians’ Centre for Excellence, the Citizenship Judge stated that she
had checked the “attendance sheets” from these programs and discovered “several
absences and several times where the programs administers (sic) were
unable to reach [the Applicant] during the relevant time period.”
[28]
The Applicant
contends that this statement is in error. Neither program discloses attendance
sheets; they disclose only “Client History Information,” which is what the Applicant
submitted with her application. Moreover, the Client History Information
indicates only one confirmed absence and one time when the Applicant was
unreachable. The Citizenship Judge’s use of “several” is inaccurate and
misleading, and it supports the Applicant’s claim of reasonable apprehension of
bias.
Citizenship Judge
Ignored Relevant Evidence
[29]
The Applicant
argues that the documentation that she delivered to the CIC office on 27 April
2010 after her interview contained, inter alia, records of her daily
banking activities, which proved her presence within Canada. The Citizenship Judge
ignored the relevant evidence because she was looking only for evidence that
supported her position that the Applicant had not met the residency
requirement. By doing so, the Citizenship Judge placed too high a burden of
proof on the Applicant.
Decision Is
Unreasonable
[30]
The Applicant
states that the Citizenship Judge drew negative inferences from two facts:
first, the Applicant’s inability to recall during the interview a third absence
from Canada, which took place 6 May
2008 to 17 July 2008; and second, the Applicant’s obtaining a US permanent resident
visa.
[31]
The Applicant
submits that it was unreasonable for the Citizenship Judge to draw such an
inference because the absence in question occurred after the relevant period,
and the Applicant never became a permanent resident of the US.
[32]
The Applicant
also argues that the date when her Canadian bank account became a joint account
with her husband is irrelevant to her being physically present in Canada. At the time of the
interview, she had not provided detailed bank statements showing actual
transactions. The Applicant contends that the Citizenship Judge’s attention to
this irrelevant detail supports her claim of reasonable apprehension of bias.
[33]
The Applicant
submits that her life is stressful and that her health condition detrimentally
affects her memory. She was confused at the interview. This explains why she
was unable to answer some of the Citizenship Judge’s questions at the
interview. In no way does that mean that she did not meet the residency requirement.
Citizenship Judge’s
Choice of Residency Test Demonstrates Bias
[34]
Justice
Michael Phelan, in Wong v Canada (Minister of Citizenship and Immigration),
2008 FC 731 at paragraphs 22-24, enumerated the three tests of residency
promulgated in this Court’s “conflicting” jurisprudence: (1) strict physical
presence; (2) quality of attachment; and (3) centralized mode of living. He
then opined on the usefulness of the first test, strict physical presence,
stating:
23 With the greatest of respect, I
cannot see how a person’s citizenship should be determined on the basis of mere
chance by virtue of whichever test a citizenship judge elects to use. This is
an area which cries out for resolution as it is impossible to appeal any
decision to obtain a final ruling from the Federal Court of Appeal.
24
The
strict physical presence test has become of limited, if any, use and would (if
it were the appropriate test) hardly require the involvement of a citizenship judge
in the mathematical calculation of physical presence.
[35]
The Applicant
submits that she has provided sufficient evidence to demonstrate her
centralized mode of living in Canada and stronger ties to Canada than to any other
country. Had the Citizenship Judge used either of the two other tests, justification
of a negative decision would have been much more difficult. That the
Citizenship Judge chose the most stringent residency test gives rise to a
reasonable apprehension of bias.
[36]
As
noted above, the Applicant contends that she met even this, the most stringent
of tests. She was present in Canada for 1096 days and was required to be present for a minimum
of 1095. For this reason, among others, the Decision is unreasonable.
The Respondent
Preliminary
Objection
[37]
The Applicant
has appended as exhibits to her affidavit numerous documents that were not
before the Citizenship Judge when she rendered her Decision on 26 April 2010.
Documents submitted after that date, specifically those documents which the Applicant
submitted on 27 April 2010, were not properly before the Citizenship Judge and
cannot be considered by this Court on judicial review. That similarly applies
to each instance that the Applicant references or relies upon those documents
in her affidavit and Memorandum. The Respondent submits that this documentation
be struck from the record. See Canada (Minister of Citizenship and Immigration)
v Chan
(1998), 150 FTR 68, [1998] FCJ No 742 (QL); Canada (Minister of Citizenship
and Immigration) v Cheung (1998), 148 FTR 237, [1998] FCJ No 813 (QL); and Canada (Minister of
Citizenship and Immigration) v Tsang (1999), 90 ACWS (3d) 348, [1999] FCJ No 1210
(QL).
Applicant Did Not Prove
That She Met the Residency Requirement
[38]
The
Respondent contends that, although the word “residence” is not specifically
defined under s. 2(1) of the Act, the allowance for one year’s absence during
the four-year period under s. 5(1)(c) of the Act creates a strong
inference that the presence in Canada during the other three years must be
substantial. See Re Pourghasemi, above, at paragraph 6; Re Koo
(1992), 59 FTR 27, [1993] FCJ No 1107 (QL) at paragraph 9; and the Act,
sections 5(1.1) and 21.
[39]
Notwithstanding
the different formulations of the residency test, the Applicant, like all citizenship
applicants, had to demonstrate, first, that she had established her own
residence for at least three years preceding her application and, second, that
she had maintained this residence throughout the relevant time period. See Canada (Minister of
Citizenship and Immigration) v Italia (1999), 89 ACWS (3d) 22, [1999] FCJ No 876 (TD)
(QL) at paragraph 14; and Goudimenko v Canada (Minister of
Citizenship and Immigration), 2002 FCT 447, [2002] FCJ No 581 (QL) at
paragraph 13. The Citizenship Judge’s finding that she did not meet the
residency requirement was supported by cogent reasons.
Citizenship
Judge’s Choice of Residency Test Was Legitimate
[40]
At
least three different tests for residency have emerged within this Court’s
jurisprudence, and the Court has held that no particular approach need be followed.
Justice Denis Pelletier in Canada (Minister of Citizenship and Immigration) v
Mindich
(1999), 170 FTR 148, [1999] FCJ No. 978 (QL) observed at paragraph 9:
Given
the divergence in the views of the members of the Federal Court, a Citizenship
Judge could choose one approach or the other and not be wrong on that count
alone. The function of the judge sitting in appeal is to verify that the
Citizenship Judge has properly applied the test of his or her choosing. I
believe that this approach properly characterizes the issue, and I adopt it as
my own.
[41]
The
Respondent submits that the strict physical presence test is an accepted
residency test. Provided that the Citizenship Judge applied the test properly
to the facts of the instant case, this Court should not interfere with her
Decision. See El Falah v Canada (Minister of Citizenship and Immigration), 2009 FC 736.
See also: Lam v Canada (Minister of Citizenship and Immigration) (1999),
164 FTR 177, [1999] FCJ No. 410 (QL) at paragraphs 11-14; Cheng v Canada
(Minister of Citizenship and Immigration) (2000), 97 ACWS (3d) 393, [2000]
FCJ No 614 (FCTD) (QL) at paragraphs 22-24; So v Canada (Minister of
Citizenship and Immigration), 2001 FCT 733 at paragraphs 27-30; and Rizvi
v Canada (Minister of Citizenship and Immigration), above, at paragraphs
11-12.
[42]
Justice
Yves de Montigny posited in El Falah, above, at paragraph 21, that a
Citizenship Judge cannot blindly accept the Applicant’s submissions regarding
the number of days of absence from or presence in Canada. Rather, the
Citizenship Judge must “verify” the Applicant’s presence “on Canadian soil”
during the relevant period.
[43]
The
Respondent submits that, in the instant case, the Citizenship Judge did apply
the test properly and reached a reasonable conclusion based on the following
findings:
a.
lack of objective
evidence showing an audit trail of a life in Canada;
b.
undeclared stamps in
the passport;
c.
the Applicant’s vague
and contradictory answers at the interview;
d.
documentation showing
that the Applicant lived at two different addresses at the same time;
e.
an unexplained and
inaccurate declaration regarding a date of departure from Canada; and
f.
documentation
provided by the Applicant that did not support her claim.
Matters Occurring After
the Relevant Period Were Pertinent To Context and Credibility
[44]
The
Citizenship Judge calculated the residency requirement based on the relevant
four-year period. The matters occurring after the relevant period, which were
taken into account by the Citizenship Judge in her assessment, provided
relevant contextual information about the Applicant’s life and activities. They
led the Citizenship Judge reasonably to question whether the Applicant’s
evidence regarding her residency in Canada was credible.
After-the-fact
Explanations Show No Error in the Decision
[45]
The Applicant
offers after-the-fact explanations for her inability to respond properly to
questions at the interview. The Applicant says that she was confused at the
interview, but there is no evidence that she requested a recess or adjournment
or that her physical health caused her to be confused.
Reference to “Attendance
Sheets” Is Not an Error
[46]
The
Respondent submits that, although the Citizenship Judge incorrectly referred to
the Client History Information as “attendance sheets,” this does not disclose
an error. The Respondent does concede, however, that the Citizenship Judge did
err when she found that this information identified “several” instances when
the LINC program administrators could not reach the Applicant. There was only
one such instance.
No Bias Demonstrated
[47]
The
Respondent contends that the Applicant has failed to show that the Citizenship
Judge was biased against her. There is a presumption that Citizenship Judges
will be impartial and that Citizenship Judges and tribunals will carry out
their oath of office in a manner that is attuned to fairness. An applicant can
displace this presumption only by furnishing “cogent evidence” demonstrating
that something the Citizenship Judge has done gives rise to a reasonable apprehension
of bias. See R v RDS, [1997] 3 S.C.R. 484, [1997] SCJ No. 84 (QL) at
paragraphs 116-17; and Zündel v Citron, [2000] 4 FC 225, [2000] FCJ No
679 at paragraph 36. The person alleging bias must meet a very high threshold.
[48]
The Respondent
contends that the Applicant has failed to provide cogent evidence that would
give rise to a reasonable apprehension of bias. She is simply dissatisfied with
the Decision.
ANALYSIS
[49]
As
the Decision shows, the Applicant presented evidence that she had actually
resided in Canada for 1096 days during
the relevant time period for her citizenship application.
[50]
The
Citizenship Judge, however, felt that the Applicant had “not met the residence
requirement under paragraph 5(1)(c) of the Act.”
[51]
The
Citizenship Judge tells us in her reasons that the “main problem with this case
is the lack of objective evidence showing an ‘audit trail’ of a life in Canada
during the relevant time period ….”
[52]
The
rationale for concluding that the Applicant had not provided “objective
evidence showing an audit trail” is provided under “the facts” section of the
Decision.
[53]
In
that section, the Citizenship Judge says that she is “not persuaded on the
evidence that you indeed established and maintained residence in Canada for the number of days
required in the Act.”
[54]
So
the Decision suggests that the application was rejected because,
notwithstanding the evidence presented by the Applicant on the number of days
she had established and maintained residence in Canada, the Applicant was not believed. The “lack
of objective evidence” results from the Citizenship Judge’s refusal to believe
the evidence actually presented by the Applicant. The rationale for this
credibility concern is provided in the Decision and each ground needs to be
examined in turn in order to decide whether the Citizenship Judge’s conclusions
in this regard are reasonable.
[55]
First
of all, the Citizenship Judge says that she has checked the Applicant’s
passport at the hearing and found that “there were several undeclared stamps
for entry to the US where your former
spouse lives.”
[56]
In
fact, there were only two undeclared stamps and both of them were dated after
the relevant time period. They were dated 5 May 2008 and 5 July 2008, and the
relevant time period runs from 5 May 2004 to 24 May 2008.
[57]
On 5
May 2008, the Applicant had traveled to the US for one day to renew her
Lebanese passport, and on 5 July the Applicant went to the US and returned the same
day. Yet the Citizenship Judge uses these brief visits outside of the relevant
period to support her conclusions of a “lack of objective evidence.”
[58]
The
Applicant’s passport failed to show a visit to the US on 27 August 2007, but
the Applicant declared this absence so that it cannot count against her
credibility.
[59]
Strictly
speaking, then, the Citizenship Judge was incorrect when she said there were
“several” undeclared stamps. The facts are that there were only two and both of
them were outside of the relevant period.
[60]
The
Citizenship Judge here makes an error of fact, which is compounded by her taking
into account irrelevant evidence. See Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR 35, [1998] FCJ No. 1425 (QL) at
paragraphs 14 and 17. She chose to apply the strictly numerical test but
referred to undeclared stamps outside of the relevant period in order to
question the Applicant’s credibility concerning the evidence she provided for
maintaining a residence in Canada during the relevant period.
[61]
The
Citizenship Judge appears to be aware that there is a problem with her finding
because, in the balance of paragraph 5 of her Decision, she provides the
following additional reasoning:
This
in itself would not be relevant due to your declared separation from your
spouse, except that your spouse applied for a US green
card for both you and your son. When I asked you about that, you told me that
this was something your spouse did on his own without asking you whether you
wanted it or not. You then told me that yours had been approved, but that your
son’s was not approved at the same time. You said that your son’s had finally
been approved but since you had not taken advantage of your own green card
while waiting for his approval, yours was no longer valid. You advised me that
you had not done anything at this point to reapply for your own green card….
[62]
I
have to admit that it is not clear to me what factual findings the Citizenship
Judge is making here. This looks like a recitation of what the Applicant had
said, but we are not told whether her account is rejected, and, if it is, what
grounds there are for rejection, nor are we told what this has to do with
“several undeclared stamps” for entry to the US from outside of the relevant
period.
[63]
In
my view, if the Citizenship Judge wishes to apply the strict numerical test for
establishing and maintaining residence in Canada, but wishes to use undeclared absences from
outside of the relevant period to question the Applicant’s evidence for
residence within the period, then a clear explanation is required. I do not
think that such explanation is provided here and, notwithstanding attempts by
Respondent’s counsel to explain this aspect of the Decision in terms of
inferences that can be drawn, I am not convinced that the Citizenship Judge has
not made a material error of fact.
[64]
The
Citizenship Judge then offers the following rationale for not accepting the
Applicant’s evidence:
(6)
Your passport also showed that you have had a B1/B2 Visitor Visa for the US.
Not all entry and exit stamps are recorded at the border and for that reason, US
absences as declared cannot be verified through passport reviews….
[65]
In
other words, the Citizenship Judge is saying that the Applicant cannot be
believed based upon entry and exit stamps because she may have returned to the US and this may not have
been recorded in her passport. It should be remembered here that the Applicant
herself declared and brought to the Citizenship Judge’s attention that she had
visited the US on 27 August 2007
during the relevant period for five days even though there was no stamp on her
passport to record this visit.
[66]
The
fact is that there was no evidence before the Citizenship Judge of undeclared
absences during the relevant period; the Citizenship Judge appears to reject
the passport evidence on the basis that it might not reveal all absences.
However, the fact that other absences may have occurred is no basis, in my
view, for rejecting the Applicant’s other evidence concerning her continued
residence in Canada during the relevant period, particularly when the Applicant
herself pointed to the deficiency in the passport evidence regarding her 27
August 2007 visit to the US. See Rani v Canada (Minister of
Citizenship and Immigration), 2006 FC 73 at paragraphs 4-5.
[67]
In
paragraph 7 of the Decision, the Citizenship Judge then refers to concerns
regarding “vague and contradictory” answers to simple questions. Even some of
the answers recited in the Decision are, in my view, neither vague nor
necessarily contradictory, but I would not hold the Decision unreasonable based
upon the reasons given in this paragraph. However, I think they do have to be
assessed in the context of the Decision as a whole.
[68]
Paragraph
8 of the Decision brings out what appear to be errors of fact that are
difficult to reconcile with the evidence.
[69]
I
see no material error in the Citizenship Judge referring to the “Client History
Information” obtained from the LINC program in Windsor as “attendance sheets.” What she is
referring to is obvious. However, it is by no means clear what the Citizenship
Judge means by “several absences and several times where the programs
administers (sic) were unable to reach you during the relevant period.”
[70]
There
is a 2 May 2008 reference to “illness.” Hence, absence might be inferred, but a
clear reason is given for this entry and it has nothing to do with absence from
Canada during the relevant
period.
[71]
There
is also a 1 June 2007 reference to “Out of Country/Vacation,” but this
corresponds with one of the Applicant’s declared absences.
[72]
There
is one reference to “unable to contact client” for 26 September 2005.
[73]
There
is also a reference to “No longer interested for 29 July 2005,” but this is
obviated by later attendances and comments that show the Applicant
participating and progressing in this program during the relevant period.
[74]
Overall,
it cannot be said that this evidence shows “several absences and several times”
when the Applicant could not be contacted in a way that could possibly suggest
she might not have been in Canada. This finding is clearly a factual error. It also reveals that
the Citizenship Judge was not looking at the general picture that the “Client
History Information” provides in conjunction with other evidence presented by
the Applicant that she was in Canada during the relevant time. It suggests that the Citizenship
Judge is disposed to draw inaccurate and unfavourable conclusions from an
insufficient evidentiary base without taking into account the full range of
evidence introduced before and at the hearing.
[75]
All
in all, I think there is sufficient reviewable error to render the Decision
unreasonable within the meaning of Dunsmuir and that this matter must be
returned for reconsideration.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
The
application is allowed, the Decision is quashed, and the matter is returned for
reconsideration by a different citizenship judge.
“James Russell”