Date: 20070704
Docket: T-1789-06
Citation: 2007 FC 698
Vancouver,
British Columbia, July 4, 2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
SIAMAK
MIZANI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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 (the Act) and section 21 of the Federal Courts Act, R.S.C. 1985, c.
F-7, from the decision of a Citizenship Judge, dated August 23, 2006, wherein
she denied the applicant's application for citizenship under paragraph 5(1)(c)
of the Act.
[2]
Siamak
Mizani (the applicant) is a citizen of Iran, born in
1955. He
was landed as a permanent resident of Canada on February
13, 2001, submitted an application for citizenship on January 4, 2005, and
attended a citizenship test on December 13, 2005. On the application form, he
indicated that he was in Canada for 1197 days and absent for 223 days in
the relevant period.
[3]
The
applicant alleges that at his citizenship test on December 13, 2005, he showed
an officer of Citizenship and Immigration Canada (the CIC officer) his current
and expired Iranian passports, the latter containing date stamps showing entry
and exit from Iran,
corresponding to the entry and exit dates to Canada stated in
his application. He alleges that he asked this officer if it was necessary to
keep the expired passport for the purposes of the application, and was then
advised about the date of his citizenship ceremony; he was not told to retain
the expired passport. He alleges that the expired passport was subsequently
destroyed, which he explained in a March 15, 2005 letter.
[4]
The
applicant appeared before the Citizenship Judge (the Judge) on July 21, 2006.
The Judge asked him about the circumstances of the destruction of the previous
passport and he informed her that his wife had mistakenly destroyed it after
the citizenship test. He alleges that his wife did so as they were under the
impression that it would no longer be required, having been inspected at the
time of the citizenship test.
[5]
The
Judge noted that the applicant provided only his current passport, and not the
expired passport covering the period of time relevant to his application. In
lieu of the missing passport, the applicant submitted a variety of other
documents in support of his application, including bills and letters.
[6]
After
reviewing the applicant's file, the Judge concluded that there was insufficient
evidence to prove his physical presence in Canada during the
relevant period. She consequently denied his application for citizenship, not
being convinced that he “has met the residency requirement of 1095 days in Canada as required by
the Citizenship Act.”
[7]
It
is well established that correctness is the appropriate standard of review for
pure questions of law. Thus, this Court must first determine whether the
Citizenship Judge selected the correct legal test in making the contested
residency determination.
[8]
The
remainder of the decision, involving the application of facts to
the law of residency, is clearly a matter of mixed fact and law. I also note
that while there
is no privative clause, citizenship judges acquire a certain expertise in
residency cases such as the present one (Farshchi v. Canada
(Minister of Citizenship and Immigration),
2007 FC 487, [2007] F.C.J. No. 674
(QL) at para. 8). As I previously stated in Canada
(Minister of Citizenship and
Immigration) v. Fu, [2004]
F.C.J. No. 88 (QL), at paragraph 7, I am convinced that a pragmatic
and functional analysis reveals that the appropriate standard of review is
reasonableness simpliciter. In arriving at this conclusion, I also rely
on considerable jurisprudence of this Court (for example, see: Farshchi, above; Tulupnikov v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1439, [2006] F.C.J.
No. 1807 (QL) at para. 11; Tshimanga v. Canada (Minister of Citizenship and
Immigration), 2005 FC
1579, [2005]
F.C.J. No. 1940 (QL)).
[9]
The
legal criteria for citizenship are set out in subsection 5(1) of the Act (see
annex for the relevant statutory provision). Among other things, it requires an
applicant to have accumulated three years of residence in Canada during the
previous four years. Though the term "residence" is undefined in the
Act itself, it has been interpreted in various ways by this Court (Canada (Minister of
Citizenship and Immigration) v. Nandre, 2003 FCT 650, [2003]
F.C.J. No. 841 (QL) at para. 6).
[10]
This
Court’s interpretation of "residence" can be grouped into three
categories. The first views it as actual, physical presence in Canada for a total of
three years, calculated on the basis of a strict counting of days (Pourghasemi
(Re), [1993]
F.C.J. No. 232 (QL) (T.D.)). A less stringent reading of the
residence requirement recognizes that a person can be resident in Canada, even
while temporarily absent, so long as he or she maintains a strong attachment to
Canada (Antonios E. Papadogiorgakis (Re), [1978] 2
F.C. 208 (T.D.). A third interpretation, similar to the second,
defines residence as the place where one "regularly, normally or
customarily lives" or has "centralized his or her mode of
existence" (Koo (Re), [1993] 1
F.C. 286 (T.D.) at para. 10).
[11]
I
essentially agree with Justice James O’Reilly in Nandre, above, at
paragraph 11 that the first test is a test of physical presence, while the
other two tests involve a more qualitative assessment:
Clearly, the Act can be interpreted two ways, one requiring
physical presence in Canada for three years out of four, and another requiring
less than that so long as the applicant's connection to Canada is strong. The first is a physical test
and the second is a qualitative test.
[12]
It
has also been recognized that any of these three tests may be applied by a
Citizenship Judge in making a citizenship determination (Lam v. Canada
(Minister of Citizenship and Immigration), [1999]
F.C.J. No. 410 (T.D.) (QL)). For instance, in Hsu v. Canada
(Minister of Citizenship and Immigration), 2001 FCT
579, [2001]
F.C.J. No. 862 (QL), Justice Elizabeth Heneghan at paragraph 4
concludes that any of the three tests may be applied in making a residency
determination:
The case law on citizenship appeals has clearly established
that there are three legal tests which are available to determine whether an
applicant has established residence within the requirements of the Citizenship
Act (...) a Citizenship Judge may adopt either the strict count of days, consideration
of the quality of residence or, analysis of the centralization of an
applicant's mode of existence in this country.
[Citations omitted]
[13]
While a
Citizenship Judge may choose to rely on any one of the three tests, it is not
open to him or her to "blend" the tests (Tulupnikov, above,
at para. 16).
[14]
The
applicant submits that the Judge erred in her interpretation of the appropriate
test for residence; her reasons do not use the express language of the Act,
using the term “presence” or “physical presence” rather than “residence”, and
she insisted on his “continued presence” which is not a requirement. I
disagree.
[15]
In
my view, it is clear that the Citizenship Judge correctly applied the
“physical presence” test: throughout her reasons she makes consistently makes
reference to the “1095 day” threshold, and focuses her analysis on the
applicant’s physical presence in Canada as supported
by the evidence. I am not persuaded that she blended this test with any other.
[16]
In
my opinion, when reading “on-going physical presence in Canada” or “continued
presence in Canada” in the context of her reasons, with its explicit mention of
the 1095 day threshold, the Judge correctly applied the strict counting of days
approach, whereby a cumulative total of 1095 days or more is required to
satisfy the requirements of paragraph 5(1)(c) of the Act. Any ambiguity is
resolved by the explicit statement: “The Citizenship Act requires a minimum of
1095 days presence in Canada during the relevant four year period…[t]he period
of time that can be counted towards his days of residence is from 13 February
2001 to 4 January 2005, a period of 1420 days.”
[17]
Reviewing
the decision as a whole, it is obvious that she equated “physical presence”
with “residence” in Canada in her decision. The Judge begins her reasons
by stating: “The issue to be decided is whether the applicant has met the residency
requirement of 1095 days in Canada as specified by the
Citizenship Act”. She then refers to “1095 days presence” in Canada.
[18]
The
applicant also submits that the Judge erred by ignoring evidence, failing to
make an express finding on how much time he had actually spent in Canada and,
in drawing a negative inference from his failure to produce his expired
passport.
[19]
In
this matter, the onus was on the applicant to provide sufficient evidence to
demonstrate that he met residency requirements of the Act (Rizvi v. Canada
(Minister of Citizenship and Immigration),
2005
FC 1641, [2005]
F.C.J. No. 2029 (QL) at para. 21). Therefore, according to the “physical presence”
test he was required to demonstrate at least 1095 days in Canada in the relevant
period, failing which, his application would be rejected. In the present case, the
Judge was not able to confirm the applicant’s assertions regarding the number
of days he was present in Canada, given the inadequacy of his evidence.
[20]
The
applicant alleges that he explained to the Judge that he felt it was not
necessary to keep his expired passport, as he understood that upon successfully
completing his citizenship test he would receive notice of his citizenship
ceremony. The applicant submits that this evidence was disregarded or not given
proper consideration by the Judge.
[21]
The
Judge interviewed the applicant, who informed her that his wife mistakenly
disposed of it after the citizenship test. When the Judge interviewed the
applicant’s wife, the latter told her that she shredded it as there was not
enough space in their bank safety deposit box. In my view, it was not
unreasonable for the Judge to find both stories unconvincing, as there was no
corroborating evidence and the explanations were not consistent.
[22]
The
applicant submits that as he destroyed his expired passport in reliance on
information from the CIC officer, his procedural fairness rights were breached,
as its absence was determinative of his application. The applicant has not established
that he reasonably destroyed such a crucial document on the sole basis of an
“impression” from the officer that it would not be necessary to his
application.
[23]
Further,
the Judge was entitled to draw a negative inference from the applicant’s
failure to produce his expired passport, which would have been pivotal to
supporting his residency application as this passport covered the entirety of
the period relevant to the application. I agree with my colleague Justice
Eleanor Dawson in Bains v. Canada (Minister of
Citizenship and Immigration), [2001] 1 F.C. 284, [2000]
F.C.J. No. 1264 (T.D.) (QL) at paragraph 38 that:
Where a party fails to bring before a tribunal evidence
which is within the party's ability to adduce, an inference may be drawn that
the evidence not adduced would have been unfavourable to the party.
[citations omitted]
[24]
In
the absence of the expired passport which covered the entirety of the period of
time relevant to the residency application, the Judge considered other
documents submitted by the applicant, including letters from neighbours, family
and friends. She reviewed this evidence and found that it was at best
“inconclusive and unconvincing”, and as a result was not satisfied that the
applicant had been in Canada for the number of days claimed in his
application. Specifically, she found that this evidence did not adequately
demonstrate the applicant’s presence in Canada. I find no
grounds justifying the intervention of the Court in this regard.
[25]
After
reviewing the evidence and the Judge's reasons for her decision, I am satisfied
that the judge correctly applied the law, considered and weighed all of the
evidence and that her decision is reasonable.
[26]
For
these reasons, this application for judicial review is dismissed.
JUDGMENT
This
application for judicial review is dismissed.
"Danièle
Tremblay-Lamer"
ANNEX A
Citizenship Act, R.S.C. 1985,
c. C-29
5.
(1) 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;
* *
5.
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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