Docket: T-788-15
Citation:
2015 FC 1328
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 27, 2015
PRESENT: The Honourable Mr. Justice Bell
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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LINA KETTANI
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the case
[1]
This is an application for judicial review
pursuant to section 22.1 of the Citizenship Act, RSC, 1985, c C-29
[the Act], of a decision dated April 14, 2015, by which a citizenship
judge approved the citizenship application of Lina Kettani [Ms. Kettani].
[2]
The Minister of Citizenship and Immigration [the
Minister] submits that the citizenship judge’s decision is unreasonable and
that this Court’s intervention is warranted. For the reasons that follow, I am
of the opinion that the application for judicial review should be dismissed.
II.
Background and alleged facts
[3]
Ms. Kettani was born on December 13,
1983, in Casablanca, Morocco, and arrived in Canada as a permanent resident on
September 10, 2006. Before settling in Canada, Ms. Kettani studied in
the United States and continued her studies at Concordia University, in Montréal,
from September 2006 to May 2007. After completing her studies, she
worked several jobs on a casual basis and did volunteer work for organizations.
Since her arrival in Canada, she has travelled outside Canada on a number of
occasions since March 2011.
[4]
On March 3, 2011, Ms. Kettani applied for
citizenship. Her reference period is from March 3, 2007, to March 3,
2011. In her application for citizenship, she provides information regarding
the number of days she was outside Canada during the reference period. On
August 14, 2013, Ms. Kettani received a residence questionnaire. This
questionnaire was sent to her because there was little supporting evidence in
her file and certain points needed to be clarified. On March 11, 2014, she
was asked to take the citizenship test and to report for an interview with a
citizenship officer. Her file was referred to a citizenship judge, and a
hearing was held on April 14, 2015.
III.
Impugned decision
[5]
On the same day as the hearing, April 14,
2015, the citizenship judge approved Ms. Kettani’s application for
citizenship. The citizenship judge found that, on a balance of probabilities, Ms. Kettani
met the residency requirement under paragraph 5(1)(c) of the Act. The
citizenship judge stated that she had based her findings on the physical
presence test for residency as laid down by Justice Muldoon in Pourghasemi
(Re), [1993] FCJ No 232, 62 FTR 122 [Pourghasemi]. The citizenship
judge found that Ms. Kettani was in Canada during the periods she claimed
to be here. The citizenship judge had no doubts as to Ms. Kettani’s
credibility or her good faith. The judge stated that Ms. Kettani gave
clear and honest answers at all times at the hearing.
[6]
In her analysis, the citizenship judge addressed
the six concerns raised by the citizenship officer in the Template and made the
following findings:
1.
[translation] “Three Canadian entry stamps are missing for
trips reported by the applicant”. For Ms. Kettani’s
first trip, the citizenship judge did not question her statement and stated
that it was not unusual for passports not to be stamped by Canadian customs
when people return from the United States by land. For the second trip, the citizenship
judge assumed that Ms. Kettani returned to Canada on the stated date
because there was a Moroccan exit stamp and no other stamp that indicated an
entry in any other country. For the third trip, she consulted the travel
history provided by the Canada Border Services Agency, which confirmed Ms. Kettani’s
entry to Canada.
2.
[translation] “Visas
were issued in Casablanca on two occasions, when the applicant claimed to be in
Morocco”. The citizenship judge simply remarked
that this was not a matter of concern, given that Casablanca is in Morocco.
3.
[translation] “A home address in the name of the applicant’s
father, located at 1155 Sherbrooke Street, #815, in Montréal, was not
mentioned in the documents”. The citizenship
judge found that Ms. Kettani had not mentioned this address because it was
a former address where her father had lived until the lease expired in
August 2006, before Ms. Kettani even arrived in Canada.
4.
[translation] “There are errors in the address of the condo
located at 1445 Stanley, and a change of apartment is not mentioned”. The citizenship judge was satisfied with Ms. Kettani’s
statement that she simply made a typing error in the first application
(entering 1145 instead of 1445). The citizenship judge was also satisfied with Ms. Kettani’s
explanations to the effect that she did not mention the change of apartment
because the family kept the same address and only changed units.
5.
[translation] “Transactions were using the applicant’s
personal account when the applicant reported being abroad, and there are no
transactions from July 2007 to January 2008. Furthermore, there are
no transactions related to rent or mortgage payments”. Ms. Kettani affirmed before the citizenship judge that she did
not travel with her debit card and that any purchases made during her absence
had surely been made by her brother, given that they were minor purchases. The
citizenship judge also noted that there were no transactions from July 2007
to January 2008 because Ms. Kettani was outside Canada during that
period. Finally, regarding the lack of transactions related to rent or mortgage
payments, the citizenship judge stated that Ms. Kettani lived with her
parents, who paid the rent, and then bought a condominium outright, without
having to pay a mortgage.
6.
[translation] “The documents on file are for the most part
passive indicators”. After tallying the dates and carefully analyzing the
documents, the citizenship judge simply concluded that, on a balance of
probabilities, Ms. Kettani was indeed in
Canada during the periods she claimed to be here.
IV.
Issue
[7]
The issue is whether the citizenship judge’s
decision that Ms. Kettani passed the physical presence test is reasonable.
V.
Standard of review
[8]
The parties agree on the standard of review
applicable to the decision of a citizenship judge regarding residence
requirements. The reasonableness standard should therefore be used, given that the
task at hand is to apply the residence test to the particular facts of the case
and that such an analysis involves questions of fact and of law (Canada (Minister
of Citizenship and Immigration) v Matar, 2015 FC 669, [2015] FCJ No 683
at para 10; Kohestani v Canada (Minister of Citizenship and Immigration),
2012 FC 373, [2012] FCJ No 443 at para 12). An impugned decision is
reasonable if it contains sufficient reasons to allow the Court to understand
the decision-making process that was used (Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3
SCR 708 at para 16 [Newfoundland Nurses’]) and whether the decision
falls within the range of “possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
VI.
Statutory provision
[9]
Under paragraph 5(1)(c) of the Act (reproduced
in Appendix A), as it read at the time of the judicial review, a person
applying for citizenship must prove that he or she resided in Canada for at
least three of the four years that preceded the date of his or her application,
that is, for 1,095 days.
VII.
Analysis
[10]
This Court has established that the concept of
residence can be interpreted in three different ways: actual, physical presence
in Canada, calculated on the basis of a strict counting of days; the
maintenance of a strong attachment to Canada (a less stringent approach); or the
place where one regularly lives or has centralized his or her mode of existence
(Mizani v Canada (Minister of Citizenship and Immigration), 2007 FC 698,
[2007] FCJ No 947 at para 10 [Mizani]). The first is a physical
test, while the others are qualitative tests (Canada (Minister of
Citizenship and Immigration) v Nandre, 2003 FCT 650, [2003] FCJ No 841
at para 11). A citizenship judge is thus free to adopt any of these tests
in his or her analysis (Mizani, above at para 12). The case law
also establishes that a citizenship judge cannot blend these tests when
analyzing an application (Ukaobasi v Canada (Minister of Citizenship and
Immigration), 2015 FC 561, [2015] FCJ No 541 at para 13; Canada
(Minister of Citizenship and Immigration) v Demurova, 2015 FC 872, [2015]
FCJ No 1209 at para 24).
[11]
The Minister argues that, in light of certain
concerns, the citizenship judge should have required additional documentation instead
of accepting Ms. Kettani’s verbal statements. However, I note that a
citizenship application does not require that all the evidence be corroborated (Canada
(Minister of Citizenship and Immigration) v El Bousserghini, 2012 FC 88,
[2012] FCJ No 106 at para 19 [El Bousserghini]; Canada (Minister
of Citizenship and Immigration) v Pereira, 2014 FC 574, [2014] FCJ No 604
at para 22 [Pereira]; Canada (Minister of Citizenship and
Immigration) v Lee, 2013 FC 270, [2013] FCJ No 311 at para 38 [Lee]).
[12]
In this case, the citizenship judge clearly
indicated that the test she applied to the facts was actual, physical presence
in Canada, the test developed by this Court in Pourghasemi, above. Ms. Kettani
had to show, on a balance of probabilities, that she satisfied the physical
presence requirement (Taleb v Canada (Minister of Citizenship and
Immigration), 2015 FC 1147, [2015] FCJ No 1181 at para 18 [Taleb]).
Accordingly, it is inappropriate to impose on Ms. Kettani an additional
burden of a qualitative test. Bearing in mind that Ms. Kettani provided
the required documents and answered the citizenship judge’s questions to her
satisfaction, the judge’s analysis fell within the range of “possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir, above at para 47),
so the intervention of this Court is unwarranted in this regard.
[13]
When a citizenship judge analyzes an application
for citizenship, he or she must bear in mind that Canadian citizenship is a
privilege that ought not to be granted lightly (Canada (Minister of
Citizenship and Immigration) v Dhaliwal, 2008 FC 797, [2008] FCJ No 994
at para 26). Before allowing a citizenship application, the citizenship
judge must be satisfied that the applicant has established, through sufficient,
consistent and credible evidence, that he or she meets the various statutory
requirements (Pereira, above at para 21). To do so, the citizenship
judge must determine whether the requirements have been met on a balance of
probabilities (Pereira, above at para 21; El Bousserghini, above
at para 19). This required standard of proof thus allows citizenship
judges to assess the facts and evidence in a given context, as well as the
applicant’s credibility. Credibility issues are owed a significant degree of
deference, as the citizenship judge is best placed to assess the facts of the
case at the hearing (Aguebor v Canada (Minister of Employment Immigration),
[1993] FCJ No 732, 160 NR 315 at para 4; Canada (Minister of
Citizenship and Immigration) v Vijayan, 2015 FC 289, [2015] FCJ No 263
at para 64). This Court cannot substitute its own views on how the
evidence should be weighed or assessed by the citizenship judge, and it cannot
reassess the evidence that was presented (Kanthasamy v Canada (Minister of
Citizenship and Immigration), 2014 FCA 113, [2014] FCJ No 472 at
para 99; Canada (Minister of Citizenship and Immigration) v
Abdulghafoor, 2015 FC 1020, [2015] FCJ No 1017 at para 16; Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339 at para 61). I am of the opinion that the citizenship judge,
having considered the evidence and Ms. Kettani’s verbal answers, rendered
a decision meeting the standard of reasonableness as set out in Dunsmuir,
above.
[14]
Furthermore, I am of the opinion that the citizenship
judge in this case did indeed take note of the concerns raised by the
citizenship officer. Although the citizenship judge did not “hypercritically” examine all the arguments raised (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425,
157 FTR 35 at para 16), her reasons are sufficient to allow the Court to
understand the reasoning process undertaken (Newfoundland Nurses’, above
at para 16; Lee, above at para 37). In this case, the reasons
clearly show that the citizenship judge addressed any significant
inconsistencies and gaps with Ms. Kettani at the hearing, which is entirely
normal and is even part of a citizenship judge’s duty of procedural fairness (Taleb,
above at paras 17, 21). Her reasons make it clear that she received
answers to her questions, and her conclusions are justified, transparent and
intelligible (Dunsmuir, above at para 47).
VIII.
Conclusion
[15]
To sum up, the citizenship judge’s reasons, as a
whole, allow me to understand her reasoning and the factors that persuaded her
that Ms. Kettani was in Canada for the days declared. Furthermore, I find
that her decision falls within the range of possible, acceptable outcomes which
are defensible in respect of the facts and law. This Court’s intervention is
therefore not required.
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