Date: 20130529
Docket: T-896-12
Citation: 2013 FC 570
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 29, 2013
PRESENT: The Honourable Madam
Justice Gagné
BETWEEN:
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MAHMOUD SAAD
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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
Mahmoud Saad [applicant] under subsection 14(5) of the Citizenship Act,
RSC 1985, c C-29 [Act], and section 21 of the Federal Courts
Acts, RSC 1985, c F-7, from a decision of a citizenship judge,
dated February 23, 2012, refusing the applicant’s
citizenship application on the grounds that he did not fulfil the residency
requirement set out in paragraph 5(1)(c) of the Act. This provision
requires a citizenship applicant to have, within the four years immediately
preceding the date of his or her application, accumulated at least three years
of residence in Canada.
[2]
Subsection 5(1) of
the Act sets out the conditions for granting citizenship, as follows:
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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.
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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.
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Facts
[3]
The applicant
is a citizen of Lebanon, born on November 10, 1976. He arrived in Canada
on December 20, 2001, on a student visa and was granted permanent
residence on January 19, 2007. On April 20, 2009, he filed an
application for Canadian citizenship in which he declared being absent from
Canada for 44 days since his entry into Canada, owing to a trip to Lebanon
from September 9 to October 23, 2008. This left him with
1,097 days of physical presence in Canada (out of the 1,095 required), as
calculated in the manner set out under subparagraphs 5(1)(c)(i) and (ii) of the Act.
[4]
The
applicant was given notice to appear for a citizenship test on June 30,
2010. That same day, an officer from Citizenship and Immigration Canada [CIC] asked him to fill out a
residency questionnaire for the reference period from April 2005 to
April 2009. On November 5, 2011, CIC sent the applicant a request for
additional information regarding his residency and his activities in Canada. On
November 17, 2010, in support of his previous statements, the applicant provided
photocopies of all the pages of his passport; bank statements covering the
period from April 1, 2005, to May 1, 2009; a sworn statement
attesting to his ownership of the building where the applicant claimed to have
lived since 2003; property tax statements for the years 2005–2006 and 2008–2009;
and his notices of assessment for the years from 2007 to 2009.
[5]
On
January 4, 2012, that applicant appeared before the citizenship judge for
an interview, and his application was refused on February 23, 2012, hence
this appeal.
Impugned decision of the
citizenship judge
[6]
The
citizenship judge appears to have applied two different tests at the same time
to the applicant’s residency requirement, namely, (i) the test in Pourghasemi (Re), [1993] FCJ
232 [Pourghasemi], according to which the applicant must prove physical
presence in Canada for at least 1,095 days during the reference period;
and (ii) the test in Koo (Re), [1993] 1 FC 286 [Koo], according
to which the requirement of physical presence in Canada may be overlooked if
the applicant for citizenship shows that during the reference period, he or she
regularly, normally and customarily lived in Canada and had centralized his or
her mode of existence here. The citizenship judge concluded that despite the
applicant’s passport confirming his statement to the effect that he had been
absent from Canada for only 44 days during the reference period, Canada
was not the country where the applicant had established himself and had been
regularly, normally and customarily living, nor was it the place where he had
centralized his mode of existence.
[7]
The
citizenship judge noted that there was no evidence corroborating the
applicant’s claims, namely,
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that
he enrolled in an applied computer sciences program at the Université de
Montréal in 2002 and received his diploma in 2005. Only a tuition receipt for
part-time studies for the Winter 2005 semester was provided;
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that
he lived on the Université de Montréal campus with his brother, Jihad, for an
unspecified period after his arrival in Canada (but before the reference period);
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that
after completing his studies, he received a work permit valid until 2006;
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that
he worked for a company called “Relationel” from October 2005 to
October 2006;
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that
he worked for his own company, doing business as IT Media, in addition to
working for a Web site development company in April 2007. The applicant
stated that he did not receive any income from this company even though it was
his only job from December 2008 to 2010.
[8]
The
citizenship judge also found that the applicant’s bank statements contained
numerous automatic transactions and few direct ones, and that the evidence
regarding his employment history since his arrival in Canada was insufficient
and contradictory.
[9]
In
response to Question 9 on his application form, the applicant gave Relationel as
one of his previous employers. At his interview, the applicant stated that he
had been offered a position as junior programmer in that company but did not
accept it because he thought the salary was too low. However, when confronted
with the fact that he had stated that he had worked there for a year, the
applicant answered that he quit his job because he was not getting along with
his supervisor. Later, the applicant said that he had trouble finding a job
with a work permit and that he therefore did not work before being granted
permanent residence in January 2007.
[10]
The
applicant held several other temporary jobs. For example, he stated that he had
worked in a private call centre for two months in 2007. He also claimed to have
worked in a convenience store next to his home, from April 2007 to
December 2008. In 2010, he allegedly opened a clothing shop, where he
worked for a year. He finally stated that since April 2011, he had been
working for CGI.
[11]
Furthermore,
the applicant did not declare any income for 2005 and 2006. At his interview,
he mentioned that his parents, who live in Lebanon, were supporting him
financially during this period but he had not added the remittances from abroad
to his Canadian tax returns.
[12]
After
interviewing the applicant, the citizenship judge asked him for additional
documentation establishing his residence in Canada, such as a residential
lease, utility bills, proof of registration of his company, IT Media Plus, proof
of income from that company, or confirmation of his employment at CGI.
[13]
To
substantiate his allegations regarding his employment history, the applicant
provided a copy of IT Media Plus’s registration and a document from an internet
search showing that he is, or was, a shareholder in another company by the name
of Innovaweb. However, only his income from his job at the convenience store
was reported.
[14]
The
citizenship judge noted other contradictions regarding the applicant’s proof of
domicile. According to the report by the citizenship officer, two other people
declared the same home address at different times while the applicant was
allegedly living there. The applicant was unable to provide more information
about how he was connected with these people or how long he lived with them. In
addition, although the applicant stated that he had lived on campus while
studying at university, the statement by the owner of the building where he
lives indicates that the applicant has been living in this apartment with his
brother, Jihad Saad, since October 1, 2003.
[15]
The
applicant also provided an unsigned letter from Hydro-Québec stating that he
was the sole account holder under an electrical service contract for the
address he declared, from January 1, 2005, to January 11, 2012; mobile telephone
bills from April 2007 to April 2009; hospital and dental clinic
bills; and a proof of vehicle registration dated October 2008. However,
the citizenship judge found that, given the various gaps and contradictions,
the information provided by the applicant was insufficient to prove that he met
the residency requirement set out in paragraph 5(1)(c) of the Act.
Issues
[16]
Strangely, the
applicant is not directly challenging the citizenship judge’s choice of
residency test (or, rather, residency tests) for assessing his citizenship
application. The applicant raises only two issues in his written submissions:
(i) whether the citizenship judge erred in assessing the evidence and
concluding that the applicant did not meet the residency requirements set out
in paragraph 5(1)(c) of the Act; and (ii) if so, whether she had a
duty to convey her comments and questions to the applicant so that he would
have the opportunity to clear up any doubts and respond to any concerns raised.
[17]
I
characterize the issues as follows:
a. Did the citizenship
judge err in concluding that, having regard to the evidence presented to her,
the applicant did not meet the residency requirement set out in paragraph 5(1)(c)
of the Act? This question is sufficiently broad to include the following: Could
the citizenship judge apply two distinct tests at the same time to determine
whether the applicant met the residency requirement set out in paragraph 5(1)(c)
of the Act?
b. Did the citizenship judge fail to make her
decision in accordance with the principles of natural justice and procedural
fairness?
Standard of review
[18]
It is generally
accepted in the case law that a citizenship judge’s application of evidence to
a specific test for residency under paragraph 5(1)(c) of the Act
raises questions of mixed fact and law and is thus reviewable on a standard of
reasonableness (Burch v Canada
(Minister of Citizenship and Immigration), 2011 FC 1389 at para 30; Canada (Minister of
Citizenship and Immigration) v Al-Showaiter), 2012 FC 12 at para 13 [Al-Showaiter]). However, issues
relating to procedural fairness must be reviewed on the correctness standard (Dunsmuir
v New Brunswick, 2008 SCC 9 at paras 55 and 79; Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43).
Analysis
[19]
For
the reasons that follow, I am of the opinion that this Court must intervene, as
the citizenship judge could not apply two distinct tests to determine whether
the applicant met the residency requirement set out in paragraph 5(1)(c)
of the Act. If physical presence in Canada can be proved for the prescribed
minimum number of days during the reference period, there is no need to present
qualitative evidence to show the applicant’s degree of integration into
Canadian society or to justify the applicant’s absences (Canada (Minister of Citizenship and
Immigration) v Talka,
2009 FC 1120; Canada (Minister of Citizenship and Immigration)
v Salim, 2010 FC 975; Canada (Minister of Citizenship and
Immigration) v Elzubair, 2010 FC 298). Since this conclusion alone
disposes of the applicant’s appeal, there is no need for me to address the
second issue.
Did the citizenship judge err in concluding that,
having regard to the evidence presented to her, the applicant did not meet the
residency requirement set out in paragraph 5(1)(c) of the Act??
[20]
The legal debate over
the residency requirement set out in paragraph 5(1)(c) of the Act
is well known. Although the language of paragraph 5(1)(c) appears
to demand quantitative and objective evidence of “residence”, the case law of
this Court has recognized three legally correct approaches that citizenship
judges may apply (Lam v Canada (Minister of Citizenship and Immigration),
[1999] FCJ 410 [Lam]). First, there is actual, physical presence in
Canada for a total of three years in the four years immediately preceding the
application (Pourghasemi). A less stringent reading of the residency
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
(In re Citizenship Act and in re Antonios
E. Papadogiorgakis, [1978] 2 FC 208). A third interpretation, also qualitative, defines
residence as the place where a person “regularly, normally or customarily
lives” and where he or she has “centralized his or her mode of existence”, in
the words of Justice Reed in Koo at paragraph 10.
[21]
As I recently stated
in Ghosh v Canada (Minister of Citizenship and Immigration), [2013] FCJ
313, I am
of the opinion that residence in Canada within the meaning of the Act requires
proof of physical presence in Canada, especially since subsection 5(1) of
the Act gives the Minister little discretion in the matter. The Minister must
grant an applicant citizenship if he or she meets the requirements set out in
the Act (see also Martinez-Caro
v Canada (Minister of Citizenship and Immigration), 2011 FC 640).
[22]
I also share the
opinion that the citizenship judge must indicate the residency test used and
explain why he or she decided that the requirements were or were not met (Canada
(Minister of Citizenship and Immigration) v Behbahani, 2007 FC 795;
Al-Showaiter).
[23]
However,
I also share the opinion of many judges of this Court who believe that so long
as the citizenship judge properly applies one of the tests described above, his
or her decision will be considered reasonable and this Court may not substitute
its own choice of test for that of the citizenship judge (Lam; Imran v Canada (Minister of Citizenship
and Immigration), 2012 FC 756).
[24]
Here are two excerpts
from the impugned reasons for decision that perfectly illustrate the confusion
that resulted from that decision:
However, after careful study of the documents and the testimony presented
by Mr. Mahmoud Saad, I am not satisfied, according to the rule of preponderance
of probabilities, that the information reflects the number of days which the
applicant declared to have been physically present in Canada
. . .
The question to be answered is: Is Canada the country in which the
applicant has centralized his mode of existence? Based on the unclear and often
contradictory nature of the evidence, the answer is: No. In fact, it was
impossible to decide if Canada is the country where Mr. Saad ‘regularly,
normally, or customarily lives’.
[25]
Regarding physical
presence in Canada, it bears noting that the applicant reported an absence of
44 days, which his passport confirms. In his written submissions, the
respondent submits that the citizenship judge chose and applied the Koo
test, which indicates that the applicant has not proved a physical presence in
Canada. At the hearing before this Court, the respondent submitted that it is
possible that the applicant visited other countries during the reference
period, such as the United States, and that his passport was not stamped when
leaving or re-entering Canada. This is highly speculative, and it would have
been relatively easy for the respondent to verify with the Canada Border
Services Agency whether the applicant’s entries and exits during the reference
period matched those appearing in his passport. No such verification was done.
[26]
The
evidence considered by the citizenship judge does not tend to contradict the
applicant’s physical presence in Canada, but it does cast doubt on how he spent
his time here and on the fact that he allegedly reported all of his income for
the period concerned. The citizenship judge did not explain why the applicant’s
passport was not persuasive evidence of his physical presence in Canada, and
she could not use elements of one or more of the other residency tests to reject
that evidence, just as she could not submit the evidence to two tests at the
same time.
[27]
For these reasons, this
appeal will be allowed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
This appeal from the
decision of Veronica Johnson, Citizenship Judge, is allowed.
2.
The file is referred
back to a different citizenship judge for redetermination.
“Jocelyne Gagné”
Certified true translation
Michael Palles
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