Date: 20080623
Docket: T-243-08
Citation: 2008
FC 797
Ottawa, Ontario, June 23rd 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
PAVITTAR SINGH DHALIWAL
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application under section 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 to appeal and set aside the decision of a Citizenship Judge
dated January 28, 2008, wherein the Citizenship Judge approved the Respondent’s
application for citizenship pursuant to section 5(1) of the Act. The
Respondent did not appear to contest this application nor did he file a
memorandum.
I. Facts
[2]
Pavittar
Singh Dhaliwal (the “Respondent”), born January 3rd 1947, is a
citizen of India who acquired Canadian
permanent resident status on June 26, 1997 after being sponsored by his son.
The Respondent submitted an application for Canadian citizenship on September
1, 2006 within which he declared that he had only been absent from Canada on
one occasion for a total of 360 days in the past 4 years prior to his
application. The stamps in the Respondent’s passport indicated that he had
actually taken four trips outside of Canada and had been absent from Canada for
a total of 799 days in the 4 years prior to his application.
[3]
The Respondent
was asked in February 2007 and July 2007 to complete a Residence Questionnaire
and to provide documentation in support of his application. The Respondent’s failure
to respond to these requests resulted in the scheduling of a citizenship
hearing for November 30, 2007. In December 2007, the Respondent finally
submitted the Residence Questionnaire wherein he stated that he was absent from
Canada for 621 days in the four
years prior to his application.
[4]
On
December 21, 2007, the Citizenship Judge approved the application. However,
having not yet completed a proper analysis of residency, the Citizenship Judge
asked the Respondent to return on January 28, 2008 and to submit documentation
to prove that he had established and maintained his residency in Canada during the four years prior
to his application. The Respondent appeared as requested and submitted
documents regarding the purchase of a home in Canada in June of 2002.
[5]
After the
January 28, 2008 meeting with the Respondent, the Citizenship Judge affirmed
his previous decision granting the Respondent citizenship and provided his
reasons for doing so. This is the appeal of the Citizenship Judge’s decision.
II. The impugned decision
[6]
The
Citizenship Judge’s reasons for granting the citizenship application were the
following:
·
the Respondent
was physically present in Canada from his arrival on June 26,
1997 until August 1998 (14 months);
·
the Respondent’s
immediate family resided in Canada including his wife has who
had been a permanent resident since 1997, his daughter who was a Canadian
citizen, and his two sons;
·
the Respondent’s
pattern of physical presence in Canada indicated that his home was Canada
because when travelling he stayed with relatives whereas when in Canada he
stayed in his own home, owned jointly by himself and one of his sons;
·
the Respondent’s
reasons for being physically absence from Canada were temporary in nature being
primarily to visit friends and family in India; and
·
the Respondent’s
connection with Canada was more substantial than
with any other country.
III. Issues
[7]
The Applicant
submitted the following issues for the Court’s consideration:
A. Did the Respondent satisfy the
requirements, prescribed under paragraph 5(1)(c) the Act that within the
four years immediately preceding the date of his application he had accumulated
at least three years of residence in Canada?
B. Did the Citizenship Judge err
in fact or in law when he approved the Respondent’s application for
citizenship?
C. Did the Respondent establish
that he had continually maintained his residence in Canada?
D. Did the Respondent
misrepresent himself in regard to his totally period of absences from Canada?
[8]
I would rephrase the issues as
follows:
A. What is the appropriate
standard of review?
B. Was the Citizenship Judge’s
decision reasonable?
III. The applicable
legislation
[9]
The
provisions of section 5 of the Act are as follows:
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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;
(d) has an adequate knowledge of one of
the official languages of Canada;
(e) has an adequate knowledge of Canada and of the responsibilities
and privileges of citizenship; and
(f) is not under a removal order and is
not the subject of a declaration by the Governor in Council made pursuant to
section 20.
Residence
(1.1)
Any day during which an applicant for citizenship resided with the
applicant’s spouse who at the time was a Canadian citizen and was employed outside
of Canada in or with the Canadian armed forces or the federal public
administration or the public service of a province, otherwise than as a
locally engaged person, shall be treated as equivalent to one day of
residence in Canada for the purposes of paragraph (1)(c) and subsection
11(1).
Idem
(2)
The Minister shall grant citizenship to any person who
(a) is a permanent resident within the
meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and
is the minor child of a citizen if an application for citizenship is made to
the Minister by a person authorized by regulation to make the application on
behalf of the minor child; or
(b) was born outside Canada, before
February 15, 1977, of a mother who was a citizen at the time of his birth,
and was not entitled, immediately before February 15, 1977, to become a
citizen under subparagraph 5(1)(b)(i) of the former Act, if, before February
15, 1979, or within such extended period as the Minister may authorize, an
application for citizenship is made to the Minister by a person authorized by
regulation to make the application.
Waiver
by Minister on compassionate grounds
(3)
The Minister may, in his discretion, waive on compassionate grounds,
(a) in the case of any person, the
requirements of paragraph (1)(d) or (e);
(b) in the case of a minor, the
requirement respecting age set out in paragraph (1)(b), the requirement
respecting length of residence in Canada set out in paragraph (1)(c) or the
requirement to take the oath of citizenship; and
(c) in the case of any person who is
prevented from understanding the significance of taking the oath of
citizenship by reason of a mental disability, the requirement to take the
oath.
Special
cases
(4)
In order to alleviate cases of special and unusual hardship or to reward
services of an exceptional value to Canada, and notwithstanding any other
provision of this Act, the Governor in Council may, in his discretion, direct
the Minister to grant citizenship to any person and, where such a direction is
made, the Minister shall forthwith grant citizenship to the person named in
the direction.
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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;
d) a une connaissance suffisante de
l’une des langues officielles du Canada;
e) a une connaissance suffisante du
Canada et des responsabilités et avantages conférés par la citoyenneté;
f) n’est pas sous le coup d’une mesure
de renvoi et n’est pas visée par une déclaration du gouverneur en conseil
faite en application de l’article 20.
Période
de résidence
(1.1)
Est assimilé à un jour de résidence au Canada pour l’application de l’alinéa
(1) c) et du paragraphe 11(1) tout jour pendant lequel l’auteur d’une demande
de citoyenneté a résidé avec son époux ou conjoint de fait alors que celui-ci
était citoyen et était, sans avoir été engagé sur place, au service, à
l’étranger, des forces armées canadiennes ou de l’administration publique fédérale
ou de celle d’une province.
Idem
(2) Le
ministre attribue en outre la citoyenneté :
a) sur demande qui lui est présentée
par la personne autorisée par règlement à représenter celui-ci, à l’enfant
mineur d’un citoyen qui est résident permanent au sens du paragraphe 2(1) de
la Loi sur l’immigration et la protection des réfugiés;
b) sur demande qui lui est présentée
par la personne qui y est autorisée par règlement et avant le 15 février 1979
ou dans le délai ultérieur qu’il autorise, à la personne qui, née à
l’étranger avant le 15 février 1977 d’une mère ayant à ce moment-là qualité
de citoyen, n’était pas admissible à la citoyenneté aux termes du sous-alinéa
5(1)b)(i) de l’ancienne loi.
Dispenses
(3)
Pour des raisons d’ordre humanitaire, le ministre a le pouvoir
discrétionnaire d’exempter :
a) dans tous les cas, des conditions
prévues aux alinéas (1)d) ou e);
b) dans le cas d’un mineur, des
conditions relatives soit à l’âge ou à la durée de résidence au Canada
respectivement énoncées aux alinéas (1)b) et c), soit à la prestation du
serment de citoyenneté;
c) dans le cas d’une personne incapable
de saisir la portée du serment de citoyenneté en raison d’une déficience
mentale, de l’exigence de prêter ce serment.
Cas
particuliers
(4) Afin
de remédier à une situation particulière et inhabituelle de détresse ou de
récompenser des services exceptionnels rendus au Canada, le gouverneur en
conseil a le pouvoir discrétionnaire, malgré les autres dispositions de la
présente loi, d’ordonner au ministre d’attribuer la citoyenneté à toute
personne qu’il désigne; le ministre procède alors sans délai à
l’attribution.
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IV. The nature of the
recourse from a Citizenship Judge
[10]
Before
discussing the standard of review, one must consider that citizenship “appeals”
are not ordinary appeals nor trials de novo; they are governed by s.
18(1)(4) of the Federal Courts Act (R.S., 1985, c. F-7 ).
[11]
Therefore,
to set aside a decision of the Citizenship Court, the Federal Court must
find a reviewable error (Canada (MCI) v. Tovbin (2000), 190 F.T.R.
102, 10 Imm. L.R. (3d) 306 (FCTD). As for the standard of review, relating to
the period of time required, the interpretation of s. 5 gave rise to various
interpretations of the word “residing” which was not defined in the Citizenship
Act (Canada (MCI) v. Chen, 2003 FCT 192, 228 F.T.R. 111; Goudimenko
v. Canada (MCI), 2002 FCT 447, 113 A.C.W.S. (3d) 766 (Goudimenko)).
[12]
Case
law reveals that the Federal Court has interpreted the word “residency” by
invoking tests such as “the centralised mode of existence test” or the “quality
of attachment test” but the law stipulates that the basic test is the physical
presence in Canada at the appropriate time (Canada (MCI) v. Adler, 2002
FCT 227, 23 Imm. L.R. (3d) 241).
[13]
The
Act is very specific in that the basic test is the physical presence in Canada and it is
only when this test fails, that the secondary tests created by the
jurisprudence can be invoked.
IV. The Standard of review
[14]
It has been decided
that the standard of review on an appeal of this nature invoked here is
correctness insofar as it relates to the applications of the residency
statutory test set out in para. 5(1)(c) of the Act, i.e. was there
residency in Canada? (Lam v. Canada (MCI) (1999), 164 F.T.R. 177, 87 A.C.W.S. (3d) 432; Zhang v. Canada (MCI),
2001 FCT 501, 105 A.C.W.S. (3d) 1017 (T.D.) at para. 7.3
[15]
In Goudimenko,
above, Justice Layden-Stevenson suggested the existence of two stages required
with respect to the residency requirements and the relationship between these
stages. At the first stage, the Court determines if residency in Canada was established. If not, the matter ends there. If it
is established there was residency, the required numbers of years or days and
the various tests to apply as whether absences can be deemed residence must be
decided.
[16]
The question as to
whether the residency requirement has been met involves a mixed question of law
and fact; it is to be decided according to the standard of reasonableness (Farshchi
v. Canada (MCI), 2007 FC 487, 157 A.C.W.S. (3d) 701).
[17]
However, it is
recognized that some deference is granted to citizenship decisions by nature of
the special degree of knowledge and experience of citizenship judges (Chen
v. Canada (MCI), 2004 FC 1693 at para. 5, 135 A.C.W.S. (3d) 773; Morales v. Canada (MCI),
2005 FC 778, 45 Imm. L.R. (3d) 284).
[18]
My colleague Justice Edmond P. Blanchard recently noted
the effect of the Supreme Court’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9, 164 A.C.W.S. (3d) 727, on the review of
the decision of a citizenship judge. He came to the conclusion that the
appropriate standard is reasonableness and I concur in that finding: Zhang
v. Canada (MCI), 2008 FC 483, [2008] F.C.J. No. 603 (QL).
[19]
That means that, as
noted by Justice James O’Reilly in Ishfaq v. Canada (MCI), 2008 FC 477,
[2008] F.C.J. No. 598:
4 I can overturn the judge's decision only if I find it 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":
Dunsmuir v. New Brunswick,
[2008] S.C.J. No. 9, 2008 SCC 9, at para. 47.
VI. Analysis
A. What is the appropriate standard of review?
[20]
The Applicant submitted
that the appropriate standard of review for a decision of a Citizenship Judge is
reasonableness. I agree. Being that the question of residency is a question of
mixed law and fact, some deference is owed because of the special degree of
knowledge and experience (Canada (MCI) v. Chen, 2004 FC 848, 131 A.C.W.S. (3d) 1016).
B. Was the Citizenship Judge’s
decision reasonable?
[21]
The Applicant submitted
that based on the evidence before the Citizenship Judge, the decision to grant
citizenship was clearly unreasonable. The Applicant noted that the Respondent
was 434 days short of the required period of residence. Moreover, the pattern
of his absences from Canada was such that he was away for many months
at a time with his life spent between Canada and India,
having spent more time in India (Sleiman v. Canada (MCI),
2007 FC 230, [2007] F.C.J. No. 296 (QL)). It was further submitted that the
mere fact that the Respondent had immediate family living in Canada does not
support a conclusion that he was coming “home” hen he returned from his
extended trips abroad. The Applicant argued that documentation regarding the Respondent’s
ownership of property in Canada is only “passive evidence” and the mere
ownership of properly is not sufficient evidence of residence under the Act
(Paez v. Canada (MCI), 2008 FC 204, [2008] F.C.J. No. 292 (QL)).
The property is registered in three names as joint tenants, including the
Respondent’s. In conclusion, the Applicant submitted that there was no credible
and reliable evidence upon which the Citizenship Judge could have based his
conclusion.
[22]
The Applicant
further submitted that the decision was unreasonable because the Citizenship
Judge did not expressly consider the Respondent’s misrepresentation regarding
the number of days that he was absent from Canada. The Applicant noted that the
Act makes it clear that misrepresentation is not to be tolerated and
anyone who is guilty of misrepresenting any fact is guilty of an offence. The
Citizenship Judge did not assess the Respondent’s credibility notwithstanding
the misrepresentation.
[23]
The
misrepresentation in the present case was with regards to the number of days
spent outside of Canada in the past 4 years prior to
his application. It appears the Respondent first submitted that he had been
absent only once from Canada for a period of 330 days. He
then submitted that he was actually absent several times from Canada for a total of 621 days. In reality,
the stamps in the Respondent’s passport indicate that he was actually absent
for a total of 799 days. He also failed to produce documentary evidence, as
required, to show the quality of his ties to Canada.
[24]
First I think it
necessary to note that the Citizenship Judge accepted that the Respondent was
absent from Canada for a total of 799 days in the four years
prior to his application. Therefore, this is not a situation where the
misrepresentation made was relied upon by the decision maker in granting
citizenship. However, having reviewed all the evidence in the Certified
Tribunal Record and the Citizenship Judge’s decision and reasons, I am of the
opinion that the Citizenship Judge’s failure to consider the actions of the Respondent
in misrepresenting the facts to officials puts into question the reasonability
of the decision.
[25]
Section 29
of the Act reads as follows:
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Definition
of “certificate”
29.
(1) For the purposes of this section, "certificate" means a
certificate of citizenship, a certificate of naturalization or a certificate
of renunciation.
Offences
and punishment
(2)
A person who
(a) for any of the purposes of this Act
makes any false representation, commits fraud or knowingly conceals any
material circumstances,
(b) obtains or uses a certificate of
another person in order to personate that other person,
(c) knowingly permits his certificate
to be used by another person to personate himself, or
(d) traffics in certificates or has in
his possession any certificate for the purpose of trafficking,
is
guilty of an offence and liable on summary conviction to a fine not exceeding
one thousand dollars or to imprisonment for a term not exceeding one year or
to both.
Idem
(3)
A person who
(a) without lawful authority issues or
alters a certificate,
(b) counterfeits a certificate, or
(c) uses, acts on or causes or attempts
to cause any person to use or act on a certificate, knowing it to have been
unlawfully issued or altered or to have been counterfeited,
is
guilty of an indictable offence and liable to a fine not exceeding five
thousand dollars or to imprisonment for a term not exceeding three years or
to both.
Idem
(4)
A person who contravenes any provision of this Act or the regulations for the
contravention of which no fine or imprisonment is provided in this Act is
guilty of an offence punishable on summary conviction.
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Définition
de « certificat »
29.
(1) Au présent article, «certificat » s’entend du certificat de citoyenneté,
de celui de naturalisation ou de celui de répudiation.
Infractions
et peines
(2)
Commet une infraction et encourt, sur déclaration de culpabilité par
procédure sommaire, une amende maximale de mille dollars et un emprisonnement
maximal d’un an, ou l’une de ces peines, quiconque :
a) dans le cadre de la présente loi,
fait une fausse déclaration, commet une fraude ou dissimule
intentionnellement des faits essentiels;
b) obtient ou utilise le certificat
d’une autre personne en vue de se faire passer pour elle;
c) permet sciemment que son certificat
soit utilisé par une autre personne pour se faire passer pour lui;
d) fait le trafic de certificats ou en
a en sa possession à cette intention.
Idem
(3)
Commet une infraction et encourt, sur déclaration de culpabilité par mise en
accusation, une amende maximale de cinq mille dollars et un emprisonnement
maximal de trois ans, ou l’une de ces peines, quiconque :
a) sans autorisation légale, délivre ou
modifie un certificat;
b) contrefait un certificat;
c) sachant qu’il a été illégalement
délivré ou modifié ou qu’il a été contrefait, se sert d’un certificat, en
permet l’utilisation ou incite ou tente d’inciter une autre personne à s’en
servir ou à en permettre l’utilisation.
Idem
(4)
Quiconque contrevient à une disposition de la présente loi ou de ses règlements
pour la violation de laquelle aucune peine n’est prévue commet une infraction
punissable par procédure sommaire.
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[26]
I agree
with the Applicant that there is without a doubt a clear message within the Act
of Parliament’s intention to discourage misrepresentation. The privilege of
acquiring Canadian citizenship is just that: a privilege. One must be truthful
in their application for such a privilege. Moreover, misrepresentation by an applicant
for citizenship puts into question their credibility and has the potential to
impact the weight given to their evidence submitted in support of their
application. Given the Citizenship Judge’s dependency on the Respondent’s
written and oral evidence and the lack of documentary evidence, the Citizenship
Judge erred in failing to discuss this factor. The failure to explain how the
Respondent’s misrepresentation impacted the decision renders the Citizenship
Judge’s decision unreasonable. He also failed to assess the Respondent’s
credibility especially considering the misrepresentation made by him. This
decision is unreasonable.
ORDER
UPON reviewing the material filed and hearing
the submissions of counsel for both parties in Toronto on June 10, 2008;
THIS COURT ORDERS that the appeal is granted, the decision by the Citizenship Judge is
quashed and the matter is sent back to be determined by another Citizenship
Judge. No order is made as to costs.
"Orville
Frenette "
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