Docket: T-1188-14
Citation:
2014 FC 1212
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 15, 2014
PRESENT: The Honourable Mr. Justice Harrington
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BETWEEN:
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TAHAR OSMANI
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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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JUDGMENT AND REASONS
[1]
Mr. Osmani is appealing a citizenship court
judge’s decision not to approve his application for citizenship on the ground
that [translation] “the applicant has not discharged his burden of proof
concerning his residency obligations” under the Citizenship
Act.
[2]
The case was commenced before the recent
amendments to the Act, so the applicant was required to have accumulated three years
(1,095 days) of residence within the four years immediately preceding
his application for citizenship.
[3]
Mr. Osmani applied for Canadian citizenship
on May 25, 2010. He stated that he had been present in Canada for
1,204 days during the preceding four years.
[4]
Prior to the amendments to the Act, there were
three lines of authority on the meaning of “residence”.
One view was that of Justice Muldoon in Re Pourghasem, 62 FTR
122, 19 Imm LR (2d) 259, [1993] FCJ No 232 (QL). He used a simple day
count, that is, the physical presence test, rather than taking a more philosophical
approach (“my heart is here even if my body is somewhere
else”).
[5]
In Lam v Canada (Minister of Citizenship
and Immigration), 164 FTR 177, [1999] FCJ No 410 (QL), Justice Lutfy,
as he then was, held that it was appropriate for a citizenship judge to adopt
any of the three conflicting lines of authority. In fact, Lam foreshadowed
the Supreme Court’s decisions providing for deference to decision makers in the
interpretation of their own statute (Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association, 2011 SCC 61,
[2011] 3 SCR 654).
[6]
In the instant case, the citizenship judge
expressly applied the physical presence test as enunciated in Re Pourghasemi.
[7]
The citizenship judge was not satisfied with the
evidence submitted. A crucial question was the birth of a daughter to
Mr. Osmani, an Algerian citizen, at a time when he claimed to have been in
Canada. The birth certificate issued by the Republic of Algeria states that Sarah Osmani,
daughter of Tahar and Zadi Nassima, was born on July 26, 2007. The
certificate was issued [translation]
“on a declaration made by the father”.
[8]
According to the footnote on the form, the declaration
must be made [translation] “[b]y the father, the physician, the midwife or any other
person present at the birth”.
[9]
The certificate is also stamped [translation] “valid
only outside the country”.
[10]
Mr. Osmani, who was interviewed by the
citizenship judge, said that he had declared the birth with the Algerian
consulate in Montréal.
[11]
The citizenship judge asked him to prove this
and to provide other evidence of his presence in Canada. He was given
30 days to do so. Within that time, Mr. Osmani provided a document in
Arabic and a few other documents related to his presence in Canada.
[12]
The citizenship judge rightly found that he
could not consider the document in Arabic because it was not accompanied by an
English or French translation. All the instructions given to applicants for citizenship
are very specific:
Any document that is not in English or
French must be accompanied by
•the English
or French translation; and
•an affidavit from the person who completed
the translation.
The citizenship judge was also not satisfied
with the other evidence provided in support of Mr. Osmani’s presence in
Canada. Some of the documentation did not even concern the four years in
question.
[13]
Since the standard of review to be applied on a
citizenship appeal is reasonableness, the following questions are raised:
1.
Was it reasonable for the citizenship judge to request
additional documents?
2.
Was it reasonable to reject the document in
Arabic, which, according to what Mr. Osmani told this Court, is the
declaration filed at the Algerian consulate?
3.
Was it reasonable to conclude that the evidence submitted
was not sufficient to establish Mr. Osmani’s presence in Canada during at
least three of the four years immediately preceding his application?
[14]
Although the birth certificate can be read in
more than one way, it was not unreasonable for the citizenship judge to require
Mr. Osmani to prove that he had declared his paternity by going to the
Algerian consulate in Montréal.
[15]
Nor was it unreasonable for the citizenship
judge to find that the other evidence submitted was not sufficiently persuasive.
[16]
Although the citizenship judge engaged in speculation,
the fact remains that the onus was on Mr. Osmani to show on a balance of
probabilities that he was present in Canada for the required period, and it was
not unreasonable for the citizenship judge to find that he had not discharged that
burden of proof.
[17]
In fact, Mr. Osmani believed that he had
filed enough evidence, since, as he states in his affidavit in support of this
appeal:
[translation]
11. because I study full time at a Canadian institution,
and I work at a public establishment, I did not make an effort to find other
evidence.
[18]
On appeal, Mr. Osmani testified about the
other documents he could have filed. He even filed a French translation of the declaration
he had made at the Algerian consulate.
[19]
However, this appeal is not a new hearing; it is
a review based on the material that was before the citizenship judge. Although
Mr. Osmani now argues that 30 days was not enough to obtain a
translation (despite the fact that the document is only a few lines long), he
did not request an extension of the deadline.
[20]
Mr. Osmani is not the judge of his own
case. It was for the citizenship judge to decide whether he had enough
information, and it is for the Court to determine whether the conclusion that
the information was not sufficient was unreasonable.
[21]
For all these reasons, the appeal must be
dismissed. Mr. Osmani is, of course, entitled to reapply for Canadian
citizenship.
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