Docket: T-493-14
Citation:
2014 FC 977
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, October 15, 2014
PRESENT: The Honourable Madam Justice Bédard
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BETWEEN:
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GEORGES HADDAH
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant appeals from a decision dated
December 19, 2013, by a Citizenship Judge (the judge), who did not approve
his application for citizenship. This case was heard at the same time as that
of the applicant’s father (docket T-492-14) and mother (docket T‑494‑14).
For the following reasons, the appeal is dismissed.
I.
Background
[2]
The applicant is a Lebanese citizen. He arrived
in Canada with his parents on June 27, 2007, as a permanent resident. He applied
for citizenship on September 2, 2010.
[3]
Subsection 5(1) of the Citizenship Act, RSC
1985, c C-29 [the Act], which sets out the criteria for granting citizenship,
reads as follows:
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Grant of citizenship
5. (1) The Minister shall grant citizenship to any person who
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Attribution de la Citoyenneté
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à
la fois:
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(a) makes
application for citizenship;
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a) en fait la demande;
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(b) is
eighteen years of age or over;
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b) est âgée d’au moins dix-huit ans;
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(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:
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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:
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(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
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(i) un demi-jour
pour chaque jour de résidence au Canada avant son admission à titre de
résident permanent,
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(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;
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(ii) un jour pour
chaque jour de résidence au Canada après son admission à titre de résident
permanent;
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(d) has an
adequate knowledge of one of the official languages of Canada;
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d) a une connaissance suffisante de l’une des
langues officielles du Canada;
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(e) has an
adequate knowledge of Canada and of the responsibilities and privileges of
citizenship; and
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e) a une connaissance suffisante du Canada et
des responsabilités et avantages conférés par la citoyenneté;
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(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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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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[4]
In his application for citizenship, the
applicant declared 1104 days of presence in Canada and 58 days of absence (attributable
to a trip to Lebanon) during the review period, which ran from June 27,
2007, to September 2, 2010.
[5]
On November 8, 2011, the applicant was
advised by a citizenship officer that he had to file his passport or passports,
complete the residence questionnaire and provide supporting documentation. The
applicant completed the questionnaire in which he indicated that he had attended
three educational institutions and worked at two jobs since his arrival in Canada. He attached to the questionnaire all the pages of his Lebanese passport as well as
copies of certain identification documents, confirmation of his permanent
residence, an invoice from the University of Montréal for the fall 2011 session
and a notice of assessment from Revenu Québec for the year 2010.
[6]
The applicant was called to a hearing before the
judge on October 31, 2013. At the hearing, the judge explained to the
applicant that he had to submit [translation]
“active” evidence of his presence in Canada. She also asked him to prepare a history
of his presence. He relied on the following history:
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From August 2007 to June 2008, he worked at NCO
Financial;
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From December 2007 to February 2008, he attended
Duval high school;
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From August 2008 to December 2009, he attended Collège
Ahuntsic;
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From May 2010 to January 2011, he worked at AIC;
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From September 2010 to June 2013, he attended
the University of Montréal;
[7]
At the hearing, the applicant undertook to send
the appropriate documentation to corroborate his statements, and the judge gave
him 20 days to submit his documents. He subsequently sent a letter to the judge
along with the following documents:
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A transcript from Duval high school covering
five terms for the 2007-2008 year;
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A transcript from Collège Ahuntsic for the fall 2008,
winter 2009 and fall 2009 sessions;
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A transcript from the University of Montréal for the fall 2010, winter 2011, fall 2011, winter 2012 and summer 2012 sessions.
[8]
In his letter, the applicant stated that because
of circumstances beyond his control he had been unable to obtain proof of his
employment to send it within the time limit imposed by the judge. He also said
that he would send it as soon as he received it if she still [translation] “wished” to have it. The
record does not indicate whether the applicant finally obtained and sent proof
of the two jobs he claims he had during the relevant period.
II.
Impugned decision
[9]
It is clear from the decision that the judge
applied the residency test set out at paragraph 5(1)(c) of the Act,
which requires physical presence, developed in Pourghasemi (Re) (1993)
62 FTR 122, [1993] FCJ No 232. In her view, the evidence submitted by the
applicant was insufficient to establish on a balance of probabilities that he
had been present in Canada for at least 1095 days during the four years
immediately preceding his application for citizenship.
[10]
The judge stated that she did not consider the
passports to be irrefutable evidence of presence in Canada and noted that she
had advised the applicant of this at the hearing.
[11]
She also found that the other documents submitted
by the applicant were insufficient to establish his physical presence and noted
that the applicant’s fresh documentation (the transcripts) was not conclusive
to confirm his presence in Canada during the review period.
[12]
Dealing with the transcripts submitted by the
applicant, the judge noted that the Collège Ahuntsic’s transcripts showed
failed or incomplete sessions with the exception of a two‑credit course that
was completed successfully in the fall of 2008. With respect to the University of Montréal transcript, she noted that it showed four courses completed
successfully and one failed course for the fall 2010 session.
[13]
She added that even for the period subsequent to
the review period (thus, after September 2, 2010) it was also difficult to
establish his physical presence in Canada because the applicant had failed two
courses in the winter 2011 session, two courses in the fall 2011 session and
had abandoned or failed all his courses at the 2012 winter session.
[14]
The judge also noted that at the hearing the
applicant had stated that he would be able to provide supplementary documentation
for the periods included during the school interruptions and that bank
statements or records of employment had been considered. She stated that she
was dissatisfied with the explanations provided by the applicant in the letter
he sent to her in which he stated that he had been unable to provide the
documents requested because of circumstances beyond his control. In this
regard, she stated that the onus was on the applicant and that he had not
discharged it because the documents he sent did not corroborate his testimony
and were not a satisfactory answer.
[15]
She therefore found that it was impossible to
determine, on a balance of probabilities, how many days the applicant had been
present in Canada during the review period.
III.
Issue
[16]
As stated previously, the judge chose to apply
the objective test of physical presence to determine whether the applicant had
satisfied his residency obligation as required by paragraph 5(1)(c)
of the Act. The applicant does not contend that the judge could not choose to
apply this test and, for my part, I have already stated on at least three
occasions that, in my view, citizenship judges can choose among the three tests
traditionally recognized by the jurisprudence as being reasonable
interpretations of the residency test (Tawfiq v Canada (Minister of
Citizenship and Immigration), 2012 FC 34 at para 9, [2012] FCJ No 1711 [Tawfiq];
Balta v Canada (Minister of Citizenship and Immigration), 2011 FC 1509 at
para 9-11, [2011] FCJ No 1830 [Balta]; Canada (Minister of
Citizenship and Immigration) v Saad, 2011 FC 1508 at para 14, [2011] FCJ No
1801.
[17]
Accordingly, the only issue in this appeal is
whether the Citizenship Judge’s decision is reasonable.
IV.
Standard of review
[18]
The parties submit, and I agree, that the decision
of a citizenship judge who must determine whether a person meets the residency
conditions in paragraph 5(1)(c) of the Act raises a question of
mixed fact and law that is reviewable on a reasonableness standard (Saad v
Canada (Minister of Citizenship and Immigration), 2013 FC 570, para 18 [Saad];
Tawfiq, above, at para 8); Canada (Minister of Citizenship and
Immigration) v Al-Showaiter, 2012 F C12 at para 13, [2012] FCJ No 7; Balta,
above, at para 5).
[19]
It is important to bear in mind that the Court reviewing
a decision on a reasonableness standard may not substitute its own assessment
of the evidence for that of the decision‑maker, in this case the
Citizenship Judge, and that it is limited to verifying whether the decision has
the qualities that make it reasonable. As the Supreme Court stated in Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190, “reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law”.
[20]
Regarding the adequacy of the reasons in support
of an administrative tribunal’s decision, the Supreme Court discussed the
perspective that the reviewing court must adopt in Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708:
12 It is
important to emphasize the Court’s endorsement of Professor Dyzenhaus’s
observation that the notion of deference to administrative tribunal
decision-making requires “a respectful attention to the reasons offered or
which could be offered in support of a decision”. In his cited article,
Professor Dyzenhaus explains how reasonableness applies to reasons as follows:
. . .
16 Reasons may not include all the arguments, statutory provisions,
jurisprudence or other details the reviewing judge would have preferred, but
that does not impugn the validity of either the reasons or the result under a
reasonableness analysis. A decision-maker is not required to make an explicit
finding on each constituent element, however subordinate, leading to its final
conclusion (Service Employees’ International Union,
Local No. 333 v. Nipawin District Staff Nurses Assn.,
[1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria
are met.
V.
Analysis
[21]
The applicant is essentially invoking a
disagreement with the judge’s assessment of the evidence adduced.
[22]
Furthermore, he submits that the judge erred by
finding that his passport was not valid evidence of when he entered and left Canada. He emphasizes the fact that a passport is an official legal document that should attest
to its contents and that, in addition, he provided his passport at the express
request of the citizenship officer. In the circumstances and relying on Saad,
above, the applicant submits that what the judge said is speculative and that
if the judge had doubts about the information in the applicant’s passport it
was up to her to verify it with the Canada Border Services Agency (CBSA).
[23]
The applicant also maintains that the other
documents he submitted, specifically his transcripts, in addition to his
testimony, were credible and sufficient to prove that he had been physically
present in Canada for the requisite number of days. In his opinion, nothing in
the evidence casts doubt on the accuracy of the information he provided. The
applicant also contends that the judge should have granted him more time to submit
evidence of his employment. He also believes that the Citizenship Judge was
much too demanding with respect to the elements required to establish his
physical presence.
[24]
With respect, I consider that the Citizenship
Judge’s decision falls within a range of possible, reasonable outcomes, having
regard to the evidence adduced by the applicant.
[25]
It is important to bear in mind that the burden
of proof is on the applicant.
[26]
First, and contrary to the applicant’s submission,
the Citizenship Judge did not reject his passport. She indicated that, in her
view, passports do not constitute irrefutable evidence of presence in Canada. Her finding in this regard was based on the existence of possible subterfuges to
circumvent stamping, including the use of passes that allow simplified customs
clearance, and the problem caused by candidates who use more than one travel
document. She stated in the decision that she had informed the applicant of her
position with respect to passports at the hearing. She also told him that he
had to provide [translation]
“active” evidence of his presence and gave him a deadline to submit additional
documents.
[27]
A passport is certainly a document that contains
pertinent information for the purposes of analyzing a person’s application for
citizenship. Moreover, it was at the request of the citizenship officer that
the applicant submitted a copy of his Lebanese passport. However, I find that
it was not unreasonable to conclude that a passport does not constitute a
document that irrefutably attests to a person’s presence in Canada. The reasons given by the judge as the basis for her conclusion are not far‑fetched
and can be justified in light of the evidence. The evidence shows that Canada does not routinely stamp passports. The Citizenship Policy Manual CP-5 deals
with stamping and with monitoring entries into and exits from the country at p 20
(p 27 of the respondent’s record) and contains the following statement:
Note: Since not all countries, including Canada, routinely stamp passports at entry, a lack of entry stamps is not always indicative
that no absences have occurred.
[28]
The evidence also shows that Canada does not monitor exits from the country.
[29]
In view of the evidence, it was therefore
reasonable to find that a passport does not constitute irrefutable confirmation
of its holder’s physical presence in Canada. As for the applicant’s argument
that the Citizenship Judge should have verified the information with the Canada
Border Services Agency, I would just like to point out that the onus is on the
applicant to submit sufficient and satisfactory evidence of his presence in Canada.
[30]
With respect to the Saad case cited
above, which the applicant relied on, the context that led to the Court’s
judgment was completely different, and Judge Gagné’s comments cannot be
transposed to this case. First, in Saad, the Citizenship Judge did not
reject the application for citizenship on the basis that she was assigning no
probative value to the information in the applicant’s passport. Second, the
Court intervened because the Citizenship Judge had applied two different
residency obligation tests at the same time.
[31]
Third, it was the respondent, not the
Citizenship Judge, who, at the hearing before the Court, raised the possibility
that the applicant’s absences were, in fact, more numerous than those indicated
in his passport because he could have left the country without his passport
being stamped on his exit from or return to Canada. Moreover, this allegation
by the respondent was not supported by any evidence. Judge Gagné found
that the respondent’s argument was speculative and noted that the respondent
could have checked with the CBSA whether the applicant’s entrances and exits
matched the information in his passport. I understand that in this context
Judge Gagné could have found that the allegation was speculative.
[32]
In this case, the judge found that passports do
not constitute irrefutable evidence of entries into and exits from the country.
Her finding is articulated and reasonably supported by the evidence. In
addition, the judge advised the applicant of her position with respect to the
probative value of passports, and he had the opportunity to submit additional
documents to establish his physical presence.
[33]
With regard to the other elements and documents
submitted by the applicant, I am of the view that it was reasonable to find
that they were insufficient to conclude that he had met his burden of establishing,
on a balance of probabilities, his physical presence for the minimum number of
days required. This conclusion is all the more reasonable considering that the
judge clearly indicated to the applicant that he had to submit [translation] “active” evidence of his
presence and gave him a deadline to do so.
[34]
I agree that the applicant submitted transcripts
of marks and that the failures in a number of courses do not support the
inference that the applicant was not present and did not attend his courses. Moreover,
considering the lack of any other significant evidence, I believe that it was
not unreasonable for the judge to find that the transcripts submitted by the
applicant were not sufficient evidence. The applicant stated that he had worked
for two different employers during the review period, and he did not submit any
document corroborating these allegations despite undertaking to do so. It
appears to me to be quite insufficient to indicate briefly in a letter that he
had been unable to obtain proof of employment for reasons beyond his control. I
find that the applicant would have been better to identify the nature of these
circumstances and to indicate the steps he had taken to try to obtain the
documents. The applicant submits that the judge should have given him
additional time, or at the very least, followed up on the applicant’s letter. I
do not agree. The onus was on the applicant to explain the steps he had taken
and to clearly ask for more time if he thought he could obtain the documents
within a reasonable time period.
[35]
I would also like to note that the residence
questionnaire that the applicant completed at the request of the citizenship
officer provides a large number of examples of documents that may be submitted
(page 47 of the respondent’s record). The documents submitted by the applicant were
quite limited, and it was reasonable to conclude that the evidence he submitted
was insufficient to establish his physical presence for the minimum number of
days required.
[36]
Regarding the identification documents, I agree
with the respondent: they are passive evidence of residence but do not
establish the applicant’s physical presence.
[37]
With respect to the judge’s reasons, I find that
they explain the reasoning on which the judge based her conclusion, which falls
within a range of possible, acceptable outcomes having regard to the evidence.
[38]
The applicant disagrees with the judge’s
decision but, in my opinion, his arguments do not justify the Court’s
intervention. The appeal is therefore dismissed.
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