Date:
20110314
Docket:
T-1358-10
Citation:
2011 FC 301
Ottawa, Ontario, March 14, 2011
PRESENT: The Honourable Madam
Justice Snider
BETWEEN:
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SAMUEL OLUSEYI
SOTADE
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Background
[1]
Mr. Samuel Oluseyi Sotade, the Applicant, is a citizen of Nigeria who wishes to become a citizen of Canada. On May 30, 2008, he submitted a citizenship application, claiming that
he had accumulated at least three years (1,095 days) of residence in Canada within the four years immediately preceding his
application. In a decision dated June 29, 2010, a Citizenship Judge concluded
that the Applicant had not met the requirement for residency under s. 5(1)(c)
of the Citizenship Act, RSC 1985, c C-29 [the Citizenship Act].
The Applicant seeks to have this decision quashed.
[2]
This is an appeal pursuant to section 14(5) of the Citizenship
Act. Such appeals proceed by way of application based on the record before
a citizenship judge and are governed by the Federal Courts Rules, SOR/98-106, pertaining to applications (Rule 300(c); Canada
(Minister of Citizenship and Immigration) v Wang,
2009 FC 1290, 87 Imm LR (3d) 184). There are no further appeals from decisions
of this Court. If the matter is not sent back for re-determination, an
unsuccessful applicant who meets the statutory criteria may reapply.
II. Issues and
Standard of Review
[3]
The only issue in this application is whether the
Citizenship Judge erred in concluding that the Applicant had not demonstrated
that he had been physically present in Canada for 1,095 days of the relevant
four-year period.
[4]
The assessment of, and weight given to, the evidence before
a citizenship judge is within his or her expertise and specialized knowledge
(see, for example, Shubeilat v Canada
(Minister of Citizenship and Immigration) 2010 FC 1260, [2010]
FCJ No 1546 (QL) at para 46). As settled by the jurisprudence and as accepted
by the parties, the question of whether an applicant is physically present in
Canada for 1,095 days is a question of fact, reviewable on a standard of
reasonableness (Ghahremani v Canada (Minister of Citizenship and
Immigration), 2009 FC 411, [2009] FCJ No 524 (QL) at para 19). On that
standard, the decision will stand unless it does not fall within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para 47 [Dunsmuir]).
III. Relevant
Statutory Framework
[5]
The relevant provision of the Citizenship
Act is s. 5(1)(c).
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The Minister shall grant citizenship to any person who:
. . .
(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;
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Le ministre
attribue la citoyenneté à toute personne qui, à la fois :
. . .
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;
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IV. Analysis
[6]
The Citizenship Judge noted in her decision that she relied
on the analytical test of Justice Muldoon in Re Pourghasemi (1993), 62
FTR 122, 19 Imm LR (2d) 259 (FCTD) [Re Pourghasemi], where it was
determined that a potential citizen must establish physical presence in Canada
for a total of 1,095 days during the four years preceding the application for
citizenship, pursuant to s. 5(1)(c) of the Citizenship Act. On this
test, the Applicant was required to demonstrate that he had been physically
present in Canada for a total of 1,095 days between May 29, 2004 and May 30,
2008.
[7]
It is important to remember that the Applicant bears the
burden of providing evidence to support his claim. As
noted by Justice Rennie in Abbas v Canada (Minister of Citizenship and Immigration),
2011 FC 145 [Abbas] at paragraph 8:
[E]ach applicant for
citizenship bears the onus of establishing sufficient credible evidence on
which as assessment of residency can be based, whether it is quantitative (Re
Pourghasemi) or qualitative (Koo). In this regard, the citizenship
judge must make findings of fact – findings which this Court will only disturb
if unreasonable.
[8]
In this case, the Applicant declared that he had been
present in Canada for 1,096 days during the relevant
period. The Citizenship Judge questioned the accuracy of this number because
the Applicant had spent much of the relevant period commuting between the
United States and Windsor, Ontario. He
became a permanent resident of the United States on May 22, 2008 and ultimately
sold his house in Canada (jointly held with his wife) in early
2009.
[9]
The Applicant, in his written submissions, does not dispute
the application of the physical presence test. Rather, the thrust of the
Applicant’s argument is that the Citizenship Judge ignored or failed to give
proper weight to the voluminous documentary record that, in his view, supports
his physical presence in Canada for the entire period.
[10]
I am not persuaded that the Citizenship Judge ignored any
of the material documentary evidence. Much of that evidence was specifically
referred to by the Citizenship Judge and was explicitly found to not support
the Applicant’s physical presence in Canada. The
remaining question is whether the Citizenship Judge’s assessment of the
documentary evidence was unreasonable. In my view, it was not.
[11]
One of the key arguments of the Applicant revolves around
his US permanent resident card dated May 22, 2008 and US entry passport stamps
also on May 22, 2008. It is evident, from reading the decision, that the
Citizenship Judge concluded that these two dated documents were indicative of a
physical move to the United States on May 22, 2008. In her
decision, the Citizenship Judge, in clear and unmistakable terms, explains why
none of the documents provided by the Applicant rebutted this finding.
[12]
The Applicant, before me, asserts that it is not unusual
for a permanent resident, before a permanent move, to arrive in his new country
but then leave immediately to “tidy up” loose ends in his home country. This
may be so; however, one would expect to see clear and convincing
evidence of the Applicant’s
return to Canada. In this case, much of the evidence
presented was vague and equivocal. For example:
·
None of the letters describing the Applicant’s volunteer
work in and around Windsor speak to his actual residence. Moreover,
at his hearing, the Applicant told the Citizenship Judge that he continued with
his volunteer work in Windsor even when he was resident in the United States.
·
A bank account in Canada is not necessarily evidence of
physical presence in Canada.
·
Use of a UPS commercial mailing address does not establish
residence (and raises a concern about whether the Applicant was seeking to
“obscure” his place of residence).
·
An OHIP card is not determinative of residence as it is
self-evident why an applicant would try to hold on to Ontario
health coverage, even if he were not physically present in Canada.
[13]
While the Applicant presents alternative explanations for
the US permanent resident card and passport stamps, the Citizenship Judge was
not unreasonable in concluding that, on a balance of probabilities, the
Applicant had not been physically present in Canada
after May 22, 2008. This meant that the Applicant was short, by at least eight
days, of the minimum physical presence requirement, pursuant to the Citizenship
Act. The shortfall of eight days would have been sufficient to reject the
application. However, the Citizenship Judge considered the entire application
before arriving at her conclusion.
[14]
The Citizenship Judge highlights many problems with the
Applicant’s declared residence in Canada
between May 29, 2004 and May 30, 2008. For example, many of the documents were
only in the wife’s name, putting into question whether the Applicant had been
physically present at all times during the relevant period. As stated by the
Citizenship Judge:
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 which serves to demonstrate that Mr. Sotade established and maintained a
residence for the number of days required by the Act.
Stated differently, the
evidence presented to the Citizenship Judge was not sufficient to establish his
physical presence in Canada for many of the claimed 1,096 days. The Applicant
failed to meet his burden of providing evidence sufficient to demonstrate that
he met the residence requirement of the Citizenship Act (Abbas,
above; Maharatnam v Canada (Minister of Citizenship), [2000] FCJ
No 405 (QL), 96 ACWS (3d) 198 at para 5).
[15]
The Applicant also raises the question of whether the
Citizenship Judge erred by taking into account periods of time beyond May 30,
2008. In the view of the Applicant, any actions of the Applicant beyond the
claimed period are irrelevant to a s. 5(1)(c) determination. I acknowledge that
the Citizenship would err by counting days of absence beyond the
relevant period – in this case, after May 30, 2008 (Shakoor v Canada
(Minister of Citizenship and Immigration), 2005 FC 776, [2005] FCJ No 972
(QL)). However, in the case before me, the references by the Citizenship Judge
to the period after May 30, 2008 were to events that were linked to the claims
and actions of the Applicant during the relevant period. In particular, the
sale of his house in 2009, even though after the relevant time period, was not
inconsistent with an intention of the Applicant to live in the United States and not in Canada. This provides additional support for the Citizenship Judge’s conclusion
that the Applicant had actually moved to the United
States as of some time prior to May 30, 2008. The Citizenship
Judge was not counting days of absence from Canada after the relevant period;
there is no error.
[16]
Having reviewed the documentary evidence provided by the
Applicant to the Citizenship Judge, I am satisfied that the stated inferences
and findings were reasonably open to the Judge. While another Citizenship Judge
might have come to a different conclusion on the basis of the evidence, I
cannot conclude that the decision in this case was unreasonable. It is not up
to this Court to re-weigh the evidence before the Citizenship Judge (Dunsmuir,
above, para 47).
[17]
In my view, 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, para 47). The appeal will be
dismissed.
[18]
In two letters written and delivered after the conclusion
of the hearing, counsel for the Applicant forwarded documentation to the Court
purporting to be further evidence of the Applicant’s residence in Canada. This evidence was not contained in the tribunal record
and was not before the Citizenship Judge. It is well-established that, under
the current rules, the application before this Court should proceed solely on
the basis of the record before the Citizenship Judge (see, for example, Canada (Minister of Citizenship and
Immigration) v Hung (1998) Imm LR (2d) 182,
[1998] FCJ No 1927 at para 8 (FCTD)). The evidence submitted after the hearing
and the submissions made in respect thereof have not been considered.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the
appeal of the Citizenship Judge’s decision is dismissed.
“Judith A. Snider”
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