Date: 20110211
Docket: T-1250-10
Citation: 2011 FC 146
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 11, 2011
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
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IBRAHIM DEBAI
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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
[1]
This
is an appeal by the applicant under subsection 14(5) of the Citizenship Act,
RS 1985, c C-29 (the Act) from the decision of a Citizenship Judge (the judge)
dated June 25, 2010, denying the applicant’s citizenship application because he
did not meet the requirements of paragraph 5(1)(c) of the Act.
[2]
The
appeal will be dismissed for the reasons that follow.
[3]
In
his initial citizenship application, the applicant stated that he lived in
Montréal between September 2001 and March 2005 and in Mississauga, Ontario from April
2006.
[4]
He
claims that he relied on the promise of a consultant who said that he could
have his application examined more quickly. He also claims that the RCMP asked
him on two occasions to testify against this consultant.
[5]
The
first judge denied his application. After an agreement with the respondent, his
file was reassessed by another judge whose decision is the one now under
appeal.
[6]
A
hearing was held December 21, 2009.
[7]
The
judge arrived at the conclusion that the applicant had not accumulated three
years of residence in Canada during the four years preceding his
application. In reaching his conclusion the judge relied on the applicant’s
lack of credibility as well as on a number of contradictions in the documents
submitted and in the applicant’s testimony.
[8]
Under
these circumstances, the judge declared that he was unable to recommend an
exemption under subsection 15(1) of the Act.
[9]
The
issue in this case is whether the judge reached an unreasonable decision in his
application of paragraph 5(1)(c) to the facts before him.
[10]
Although
the applicant did not present any arguments as to the applicable standard of
review, I am of the opinion that it is the standard of reasonableness that
applies (Hernando Paez v Canada (Citizenship and Immigration),
2008 FC 204, at paragraph 12; Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, at paragraph 47). The Court will intervene only if the
decision does not fall within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law (Dunsmuir, at paragraph
47).
[11]
I
would first note that the judge chose to adopt the strict interpretation of paragraph
5(1)(c) of the Act, that is, that the applicant must demonstrate that he
had in fact resided at least 1,095 days in Canada during the four years
preceding his application.
[12]
I
am aware that this Court is not unanimous on the subject of the approach
citizenship judges should take when accepting or denying an application for
citizenship.
[13]
In
the very recent decision of Hao v Canada (Minister of
Citizenship and Immigration), 2011 FC 46, Justice Mosley
examined this question in detail and concluded that it is up to Parliament to
change the law to avoid different interpretations of paragraph 5(1)(c).
In other words, he recognized the right of citizenship judges to choose either
a strict or a qualitative interpretation of the residency requirements. I agree
with his reasoning.
[14]
In
the case before us, the judge stated that he was concerned by the fact that the
applicant had admitted to providing a false address in his initial application
in order to speed up the processing of his file (Respondent’s Record, Volume 1,
page 19). He noted that the applicant had admitted that the information
provided was false but put the blame on his consultant.
[15]
The
judge considered the totality of the evidence and noted several doubtful
elements such as that the applicant could not remember the name of the pharmacy
where he worked or the names of his professors at the Université du Québec à
Montréal (UQAM). He could not say where the pastry shop he worked at was
located. His bank account records were incomplete.
[16]
In
his supplementary record, the respondent acknowledged that the judge had in his
possession a lease that he did not mention in his decision and that he may have
been mistaken in his analysis of an entry in the applicant’s passport.
[17]
These
two errors are not determinative when the overall decision is examined.
[18]
The
judge declared that he was not satisfied with the evidence submitted to confirm
that the applicant had stayed in Canada for the minimum period
of 1,095 days, despite the submission of a number of documents showing that he
was present during the period in question.
[19]
Despite
the applicant’s admission that he made a false representation in his initial
application, the Court considers that the judge was entitled to find that there
were questions of credibility in both the applicant’s testimony and in the
documents filed in support of his application.
[20]
I
am unable to find that the decision contains a reviewable error. The
intervention of the Court is, therefore, not warranted.
JUDGMENT
THE COURT
ORDERS that the applicant’s appeal be dismissed. Without costs.
“Michel
Beaudry”
Certified
true translation
Susan
Deichert, Reviser
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