Date: 20110209
Docket: T-988-10
Citation: 2011 FC 145
Ottawa, Ontario, February 9,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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MOHAMAD RAGHEB ABBAS
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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 application pursuant to subsection 14(5) of the Citizenship Act (R.S., 1985, c.
C-29) (the Act)
for judicial review of a Citizenship
Court decision dated April 26, 2010
refusing the applicant’s
application for citizenship.
Overview
[2]
The
applicant came to Canada on September 17, 2003. He became a permanent
resident on May 12, 2005 and applied for citizenship on March 21, 2008. In
refusing the application the Citizenship Judge expressed concern about the lack
of an “audit trail” verifying the applicant’s actual residence in Canada. The
applicant had been outside of Canada for 186 days in the United Arab Emirates
(UAE), which, when deducted from his total residency period of 1252 days, left
him with 1,095 days of purported residence in Canada.
[3]
When
Mr. Abbas applied for Canadian citizenship in March 2008 he thought he had exactly
the minimum number of days of residency in Canada required by section 5(1)(c)
of the Act. Section 5(1)(c) of the Act requires a potential
citizen to maintain residency in Canada for three out of the four years
immediately preceding his or her application for permanent residency (i.e.
1,095 out of 1,460 days). The Citizenship Judge rejected Mr. Abbas’
application, concluding 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 which serves to demonstrate that Mr Abbas established and maintained a residence
for the number of days required in the Act.
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 in order to show that he or she
meets the residency requirements of the Act has been set out in Maharatnam
v Canada (Minister of Citizenship) (2000) F.C.J. No. 405 (F.C.D.). The
applicant failed to do this.
Applying the residency test set by
Muldoon J in Re Pourghasemi, I conclude that on the balance of
probabilities, I am not satisfied that you meet the residency requirements
under s. 5(1)(c) of the Act.
[4]
Questioning
the veracity of his testimony and documentation the Citizenship Judge was not
satisfied that the information provided by Mr. Abbas on his citizenship
application accurately reflected the actual number of days he was physically
present in Canada. In
applying the test in Re Pourghasemi, [1993] FCJ No 232, the Citizenship
Judge determined that Mr. Abbas had not met the residency requirements under s.
5(1)(c) of the Act. Mr. Abbas seeks review of this decision, arguing
that it was an error of law for the Citizenship Judge to have applied Re
Pourghasemi.
The Issue
[5]
The
applicant contends that the Citizenship Judge erred in law by applying the
residency test expressed in Re Pourghasemi. The applicant urges
that there is one legally correct test, namely the six-part analysis as
expressed in Koo
(Re),
[1993] 1 FC 286 which was subsequently followed by this Court in Canada
(Citizenship and Immigration) v Takla, 2009 FC 1120 and which he argues should
have been followed by the Citizenship Judge to assess his application. Mr. Abbas
argues that the Citizenship Judge had no choice but to follow the decision in Takla,
which was rendered some five months prior to the Citizenship Judge’s decision
and which has been followed by other judges of the Federal Court. The issue in
this case is, therefore, whether the Citizenship Judge erred in law in
following Re Pourghasemi and not Takla.
Analysis
[6]
In
support of his position the applicant notes that there are several recent
decisions of this Court which apply the qualitative test of Koo and Takla,
for example: Canada
(Citizenship and Immigration) v Elzubair, 2010 FC 298; Canada
(Citizenship and Immigration) v Cobos, 2010 FC 903; and Dedaj v Canada
(Citizenship and Immigration), 2010 FC 777.
[7]
Counsel
for the Respondent notes, however, that the quantitative test in Re Pourghasemi
has also been applied by this Court, subsequent to Takla, and still other
cases which leaves the selection of which test to apply open to the Citizenship
Judge provided the underlying rationale for its application is clearly
expressed and is reasonable, for example: Canada (Citizenship and
Immigration) v Jeizan, 2010 FC 323; Sarvarian v Canada
(Citizenship and Immigration), 2010 FC 1117; and Alexander David Cardin
v Minister of Citizenship and Immigration, 2011 FC 29. The
respondent also notes that the reasoning in Takla is obiter and
that the decision is not binding on other judges of the Court.
[8]
Irrespective
of which test is applied, each applicant for citizenship bears the onus of
establishing sufficient credible evidence on which an 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.
[9]
The
requirement for credible, consistent evidence establishing residency, however
defined, does not disappear under either the quantitative or the qualitative
test. Justice Mainville recognized this in Takla:
Finally,
as a last point, it is useful to note that the Koo test and the
six-questions analysis attached to that test are only useful to the extent that
residence in Canada has
actually been established at a date prior to the citizenship application in
order to effectively calculate a period of residence under the Citizenship Act.
In fact, if the threshold issue of residence has not been established, the judge
should not conduct a more thorough analysis. (para. 50)
[10]
Similarly,
Justice Layden-Stevenson (as she then was) articulated an effective analytical
framework governing the approach to the review of Citizenship decisions. In Goudimenko
v Canada (Minister of
Citizenship and Immigration), 2002 FCT 447, para. 13 she held:
The difficulty with the appellant’s
reasoning is that it fails to address the threshold issue, his establishment of
residence in Canada. Unless the threshold test is
met, absences from Canada are irrelevant . . . In other
words, a two‑stage inquiry exists with respect to the residency
requirements of paragraph 5(1)(c) of the Act. At the first stage, the threshold
determination is made as to whether or not, and when, residence in Canada has been established. If
residence has not been established, the matter ends there. If the threshold has
been met, the second stage of the inquiry requires a determination of whether
or not the particular applicant’s residency satisfies the required total days of
residence. It is with respect to the second stage of the inquiry, and
particularly with regard to whether absences can be deemed residence, that the
divergence of opinion in the Federal Court exists.
[11]
Justice
Layden-Stevenson’s reasoning is apposite in this application. Residency itself
must, as a matter of evidence, be established on a balance of probabilities. In
this case, the Citizenship Judge found that the evidence was insufficient to
establish residency as the evidence was unclear and inconsistent. In
particular, the Citizenship Judge noted:
a.
On the
applicant’s residency questionnaire, he noted that he had been living and
working in Dubai, UAE, since March 2008. This
was in direct contradiction to what he informed CIC during his citizenship test;
b.
There was
a discrepancy as to his address as of March, 2008, and whether it was Windsor, Ontario, or the UAE;
c.
There was
inconsistent evidence as to whether he lived with his wife in Windsor, or whether his wife lived
with him in the UAE for 18 months;
d.
There was
a discrepancy between the Canadian address shown on the residency questionnaire
with the residence shown on the temporary Ontario drivers’ licence; and
e.
His
temporary Ontario driver’s licence was applied
for the day before the hearing.
[12]
The
applicant does not challenge these findings, but rests his case on the
assertion that it was an error of law for the Citizenship Judge not to apply
the test articulated in Takla, above. As noted, consistent with this
Court’s decision in Lam v Canada (Minister of
Citizenship and Immigration), (1999), 164 FTR 177, provided the
citizenship judge adopts and applies one test correctly, the decision will not
be disturbed. Takla did not, and could not, overrule Lam, as the
applicant contends.
[13]
Moreover,
as noted earlier, regardless of which test is actually applied by a citizenship
judge, there must be a sufficient factual foundation to warrant the application
of a test in the first place. In my opinion, had the Citizenship
Judge applied Takla, the outcome in Mr. Abbas’ case would have been no
different than the outcome presented by applying Re Pourghasemi. There
were simply too many unexplained discrepancies with respect to residency in his
application. These would not have simply evaporated under the qualitative
analysis espoused in Koo and Takla. Inconsistent or unclear
evidence of residency will not gain a greater life or strength under the
qualitative Koo test.
[14]
It
is settled law that the standard of review of a citizenship judge’s decision is
reasonableness; Zhang v Canada (Citizenship and Immigration), 2008 FC 483; El Falah v Canada (Citizenship
and Immigration), 2009 FC 736. Consequently, when dealing with
questions of mixed fact and law, as in the application of the test of residency
to the particular facts of the case, or to purely factual questions, as when
computing the days of presence in Canada, the reviewing court should assess the
reasons below to ensure that it is within the range of possible, acceptable
outcomes defensible in respect of the law and facts: Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. In this case the different
explanations given by the applicant as to his actual residence in Canada, as to
the residence of his wife and whether he lived with her, did not show on a
balance of probabilities whether the threshold question of residence had been established,
as set forth in Goudimenko, above.
[15]
For
these reasons, I find the decision of the Citizenship Judge to be within the
range of possible, acceptable outcomes and defensible in respect of the facts
and law. Accordingly, the application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby dismissed.
"Donald
J. Rennie"
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