Docket: T-1756-14
Citation:
2015 FC 289
Ottawa, Ontario, March 9, 2015
PRESENT: The
Honourable Mr. Justice Mosley
|
BETWEEN:
|
|
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Applicant
|
|
and
|
|
THOMAS THOMAS VIJAYAN
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
Uncertainty has long plagued the case law on
citizenship. Residence in Canada is a crucial requirement for obtaining
Canadian citizenship, yet this Court has applied two different tests for
assessing that requirement: the quantitative “physical
presence” test and the qualitative “centralized
mode of existence” test. An applicant has no way of knowing in advance
which test will govern her case. A Citizenship Judge may reasonably use one
test to reject her application even though the other test may have justified a
grant of citizenship.
[2]
Amendments to the Citizenship Act, RSC
1985, c C-29 [the Act] will bring needed clarity to the law by entrenching the
physical presence standard in the statutory text. However, those amendments
have not yet come into force. In this case, the Citizenship Judge was free to
use either the quantitative or qualitative test. He opted for the latter.
[3]
As will become apparent, the number of days the respondent
physically spent in Canada is central to this application despite the Citizenship
Judge’s choice. To those who would express reservations with the relevance of
this fact to the qualitative test, the Court repeats a question once posed by
Justice Snider: “How can any assessment of residence be
conducted when an accurate number of days of residence cannot be established?”
(Atwani v Canada (Citizenship and Immigration, 2011 FC 1354 at para 16).
[4]
The present matter is a judicial review
application brought by the Minister, challenging the grant of Canadian citizenship
to the respondent, Mr Vijayan. The Minister has also challenged the grant of
citizenship to the respondent’s wife, Mrs Thomas, in a companion application
(T-1755-14).
[5]
The Court has reached opposite conclusions in
these files. For the reasons given below, the Minister’s application for
judicial review with respect to Mr Vijayan is granted. For the reasons given in
the judgment disposing of the companion application, the Minister’s application
for judicial review concerning Mrs Thomas is dismissed.
I.
Background
[6]
Mr Vijayan is a citizen of India and permanent resident of the United Arab Emirates [UAE]. He entered Canada as a permanent resident with his wife, Mrs Thomas, on July 16, 2007. He was approved under
the Quebec investor class but appears to have never resided in Quebec.
[7]
The respondent has four children. His youngest
daughter was born in the United States on September 30, 2007. No attempt was
made to sponsor her for permanent resident status in Canada until August 2009.
She was granted that status in March 2010. There is no record of the child
entering or living in Canada prior to that date.
[8]
The respondent and his wife submitted
applications for Canadian citizenship on July 18, 2011. Thus, the relevant time
period for residence runs from July 18, 2007 to July 18, 2011.
[9]
As part of his application, the respondent
submitted copies of three passports: one issued in Abu Dhabi (valid until
2012), one issued in Toronto (valid until 2019) and another issued in Toronto (valid until 2022).
[10]
On his application, the respondent declared 59
absences from Canada totalling 307 days during the relevant period. Not all of
the absences could be verified due to missing stamps. The passports submitted
by the respondent revealed 26 Canadian re-entry stamps.
[11]
The passports submitted by the respondent did
not contain a United States visa. However, there are United States entry stamps
marking “VIOPP” in one of his passports. This
stands for “Visa in Other Passport”.
[12]
The respondent also submitted financial records,
including credit card statements, which show transactions made outside Canada during the relevant period, on days the applicant declared he had been physically present in Canada. He reported no income for 2007 and 2008 and increasing amounts for 2009, 2010 and
2011.
[13]
The respondent submitted report cards showing
that his children began attending school in Canada in September 2008.
[14]
The respondent submitted evidence that he
purchased a home for $5.5 million in Oakville in August 2008.
[15]
A Citizenship Officer prepared a File Preparation
and Analysis Template [FPAT] and placed it on the file for consideration by the
Citizenship Judge. The FPAT is a protected document that is not disclosed as
part of the certified tribunal record [CTR]. The Officer swore an affidavit in
these proceedings claiming that he raised the following concerns in the FPAT:
1. The respondent’s absences from Canada could not be verified due to
missing passport stamps;
2. The respondent renewed his passport years before it would have
expired;
3. The “VIOPP” entries in the
respondent’s passport suggest that he had another (fourth) passport which was
not submitted in his application;
4. The respondent waited nearly two years before seeking permanent
residence in Canada for his daughter born in the United States;
5. Little documentation was provided about the respondent’s activities
from July 2007 to September 2008;
6. The respondent’s credit card statements show transactions in the UAE
during times he claimed to be in Canada; and
7. The report cards for the respondent’s children only begin in
September 2008.
[16]
Mr Vijayan and his wife attended separate
hearings before the Citizenship Judge on October 29, 2013. The Judge issued his
decision granting Canadian citizenship to Mr Vijayan on June 30, 2014.
[17]
The Minister filed a notice of application for
judicial review on August 14, 2014. The Court granted leave.
II.
Issues
[18]
This application raises four issues:
1.
Should an extension of time be granted?
2.
Did the Citizenship Judge assess the evidence
unreasonably?
3.
Did the Citizenship Judge err in assessing the
respondent’s credibility?
4.
Did the Citizenship Judge err in applying the
qualitative test?
III.
Standard of Review
[19]
The first issue is a question of law which the
Court must answer for itself.
[20]
The parties agree that the standard of
reasonableness applies to the remaining issues (see e.g. Canada (Citizenship
and Immigration) v Rahman, 2013 FC 1274 at para 13; Canada (Citizenship
and Immigration) v Al-Showaiter, 2012 FC 12 at paras 12-14; Chowdhury v
Canada (Citizenship and Immigration), 2009 FC 709 at paras 24-28; Canada
(Citizenship and Immigration) v Zhou, 2008 FC 939 at para 7).
IV.
Decision under Review
[21]
The decision contains three sections. First, the
Citizenship Judge provides handwritten Decision Notes. Second, there is an
Approval Synopsis form whose blank spaces were filled in by the Citizenship
Judge. Third, the Citizenship Judge made seven additional pages of handwritten
notes that were included in the file.
[22]
The Decision Notes begin with background
information. They state that the respondent declared 59 absences for a total of
306 days in his application, for a total physical presence of 1,154 days. On a
previous residence questionnaire, the respondent had declared that the 59
absences amounted to only 282 days.
[23]
The Citizenship Judge explains that the applicant
told him that he is a well-known wildlife photographer and a partner in a UAE
company. When he arrived in Canada, the company owed him $7 million in
outstanding receivables. Many of his declared absences were business trips to
the UAE to collect the outstanding amounts. These trips ranged in duration from
1 to 21 days. Their average length was 6 or 7 days.
[24]
The respondent explained that he maintained a
UAE permanent resident visa because his debtors might avoid paying him if they
knew he lived abroad. The respondent had only managed to collect $3.2 million
of the $7 million owing to him thus far.
[25]
The respondent explained that he also travelled
frequently for wildlife photography but that these trips were also very short.
[26]
The Citizenship Judge notes that the respondent
always returned to Canada after his trips and had purchased a home in Oakville
for $5.5 million in August 2008 – emphasizing that this was a “very substantial in Canada”. Therefore, the
respondent had “centralized his mode of living in Canada”.
[27]
The respondent explained that his wife and
newborn daughter experienced medical complications after the latter’s birth in
the United States. While the respondent’s wife and children remained in the United States in the aftermath, the respondent continued to conduct his business in Canada. The respondent has since established a business with his wife in Canada.
[28]
The Citizenship Judge concluded that “on balance of probabilities, I believe that Applicant has
met his residence requirements as per paragraph 5(1)(c) of the Citizenship Act”.
He writes that he applied the qualitative Koo test and attached his
decision notes accordingly.
[29]
The Approval Synopsis lists the six questions
laid out by Justice Reed in Koo (Re), [1992] FCJ No 1107 (TD) [Koo]
and leaves spaces for the Citizenship Judge to provide details.
[30]
The first question asks how many days the
respondent spent in Canada during the first year before his first absence and
how many days he was physically present during the first year. The Citizenship
Judge answers “26 days” and “268 days”, adding: “Frequent
short trips abroad to collect receivables in UAE. Also renowned wildlife
photographer requires him to photograph his subjects worldwide”.
[31]
The second question asks where his immediate
family, dependants and extended family reside. The Citizenship Judge answers
that the respondent’s wife and 4 children reside in Canada, that he purchased a
home for $5.5 million in Canada and that he established a business in Canada.
[32]
The third question asks whether the pattern of
physical presence in Canada indicates a returning home or merely visiting the
country. The Citizenship Judge notes that the respondent always returns to Canada after his trips. He explains that there were “12 undeclared
absences but I still believe that the Applicant has met the residence
requirements of the Act given given credible testimony at the hearing”.
[33]
The fourth question asks about the extent of the
physical absences. The Citizenship Judge answers that the respondent declared
306 days of absence but that there were another 12 undeclared return entries.
He continues: “Average absence was 7 days or less, and
if I consider the additional absences at 5-6 days the Applicant would still
qualify in meeting his residence requirements.”
[34]
The fifth question asks whether the physical
absence was caused by a clearly temporary situation. The Citizenship Judge
answers that it was, since the applicant made short trips to collect money in
the UAE and to photograph wildlife. Further, “Applicant
was credible in his testimony regarding his absences from Canada”
[35]
The final question asks about the quality of the
respondent’s connection with Canada. The Citizenship Judge states that the
applicant resides in Canada with his spouse and 4 children, that he purchased
an expensive family dwelling and that he began a business. He travels worldwide
because he is a renowned wildlife photographer.
[36]
In the final blank space, labeled “Decision”, the Citizenship Judge summarizes the above
arguments and concludes: “I am satisfied on a balance
of probabilities that the Applicant has met the residence requirements of
Paragraph 5(1)(c) of the Citizenship Act.”
[37]
It is unnecessary to discuss the Citizenship
Judge’s remaining notes in detail. I simply draw attention to the most relevant
passages.
[38]
The Citizenship Judge addresses a UAE
transaction registered on a credit card statement on a day the applicant
declared that he was in Canada: “Applicant explained
that the charge in Abu Dhabi was his daughter who has secondary credit card on
his account” Later, the Citizenship Judge addresses other transactions
in UAE currency during periods the respondent declared that he was in Canada.
His explanation is that he had purchased airline tickets online.
[39]
The Citizenship Judge writes that the respondent
did not declare a shortfall but there were 12 undeclared returns to Canada. He explains that the respondent takes very short trips (as short as 1 day in the US and 3 days in India) and so: “If I were to use an average of even 5 days
per trip (5 days x 12 trips) = 60 days additional absences; Applicant would
still not have a shortfall.”
[40]
The Citizenship Judge accepts the respondent’s
explanation for not seeking Canadian permanent residence for his youngest
daughter until August 2009. The respondent’s account of his daughter’s medical ordeal
in the United States is corroborated by the evidence and his wife’s testimony,
which was given separately. The Citizenship Judge also accepts that there are
no school records from September 2007 to June 2008 because Mrs Thomas
home-schooled the children in the United States during her stay there.
[41]
The Citizenship Judge states that he viewed the
respondent’s US visa, which was issued in 2000 and expired in 2010. He also
states that the respondent explained that he had filled the pages of his first
passport issued in Toronto in 2009 and then ordered a new one.
V.
Analysis
A.
Should an extension of time be granted?
[42]
The Citizenship Judge rendered the decision
under review on June 30, 2014. At that time, the Act gave the Minister 60 days
to appeal. The Minister’s notice of appeal would have been due on or before
August 29, 2014.
[43]
However, on August 1, 2014, an amendment made
pursuant to the Strengthening Canadian Citizenship Act, SC 2014, c 22
came into force. Since the amendment, section 22.1 of the Act provides that a
notice of application for leave must be filed within 30 days of the decision.
[44]
Due to an administrative error, the Minister’s
file reflected the deadlines of the Act as it read at the time the decision was
rendered. As a result, the notice of application for leave was filed on August
14, 2014.
[45]
To obtain an extension of time, a party must
satisfy the four part conjunctive test set out in Canada (Attorney General)
v Hennelly, [1999] FCJ No 846 (FCA) by demonstrating: (1) a continuing
intention to pursue the application; (2) that the application has some merit;
(3) that no prejudice to the other party arises as a result of the delay; and
(4) that a reasonable explanation for the delay exists.
[46]
I observe that the Court must decide this matter
even though leave was granted, since the order granting leave was silent on
whether an extension of time was appropriate (Deng Estate v Canada (Public
Safety and Emergency Preparedness), 2009 FCA 59 at paras 15-18).
[47]
In my view, the Minister has met the Hennelly
test. To begin, he has shown a continuing intention to file the application. He
provided affidavit evidence to that effect. The application was filed late but
well in advance of the deadline which he erroneously believed to be in force.
As such, I accept that the Minister always intended to challenge the decision
under review and filed the application as soon as he became aware of the error.
[48]
The application is not without merit. It raises arguable
issues.
[49]
I reject the respondent’s argument that an
extension would inflict prejudice upon him. The inconvenience he mentions does
not follow from the delay but from the very fact that his grant of citizenship
has been challenged. The same prejudice would have arisen even if the Minister
had filed this application the day after the Citizenship Judge rendered the
decision under review. The application was filed six weeks after the decision
was rendered and two weeks late. This delay is not so great as to inflict
prejudice that would not have existed otherwise.
[50]
Finally, I accept the Minister’s explanation as
reasonable. Although it is somewhat unseemly for government lawyers to miss
statutory deadlines, the human error in this case is excusable. Moreover, the
brevity of the delay suggests that the Minister’s delegates identified their
error rather promptly.
B.
Did the Citizenship Judge assess the evidence
unreasonably?
[51]
The respondent had a shortfall in his physical
presence in Canada but failed to declare it. In his citizenship application, he
declared 307 days of absence accumulated over 59 trips outside the country and
1,153 days of physical presence. At the hearing, it came to light that he had 12
more undeclared trips outside Canada, bringing the total number to 71.
[52]
Three lines of jurisprudential authority are
open to Citizenship Judges for the assessment of residence: Papadogiorgakis
(Re), [1978] FCJ No 31 (TD); Pourghasemi (Re), [1993] FCJ no 232
(TD); and Koo. In effect, they establish two tests because Koo is
an elaboration on Papadogiorgakis. The first test is quantitative, focusing
on the number of days physically spent in Canada. The second is qualitative, focusing
on whether the applicant has centralized his mode of existence in Canada. I have previously explained these tests in Hao v Canada (Citizenship and
Immigration), 2011 FC 46 at paras 14-19.
[53]
Either test is reasonably open to a Citizenship
Judge. Neither party disputes this.
[54]
The parties also agree that a Citizenship Judge
who uses the Koo test, as occurred here, may determine that an applicant
for citizenship has met the residence requirement despite being physically
present in Canada for less than 1,095 days during the relevant period. The
applicant must demonstrate that, despite his absences, Canada is the place where he “regularly, normally or customarily lives”
– or, in other words, that he has “centralized his…mode
of existence” in Canada (Koo).
[55]
Despite this, the Koo test explicitly
inquires into the duration of absences at the fourth step. The magnitude and
nature of these absences inform the entire Koo analysis.
[56]
I agree with the Minister that the Citizenship
Judge’s indefensible assessment of the respondent’s absences tainted his decision.
A qualitative assessment which relies on an unreasonable examination of the
numbers cannot be reasonable. As Justice Lemieux stated in Canada (Minister of Citizenship and Immigration) v Jreige, [1999] FCJ No 1469 (TD) at
para 22, another case where a Citizenship Judge had applied the Koo test:
In some circumstances, the failure of a
Citizenship Judge to fully inquire into the scope of the absences as well as a
breach by an applicant for Canadian citizenship of accurate disclosure of his
presence or absence in Canada may well be sufficient in and of itself, to
overturn a Citizenship Judge’s decision.
[57]
In the case at bar, the respondent declared 307
days of absence in his application for citizenship. For an unexplained reason,
the Citizenship Judge wrote that the applicant had 306 declared days of absence
and 1,154 declared days of presence. The Citizenship Judge made a finding of
fact that the respondent’s trips averaged 6 to 7 days – yet for another
unexplained reason, he decided that the 12 undeclared trips averaged 5 days. On
the strength of this assumption, he found that there was no shortfall. However,
1,154 minus 60 results in 1,094 – still one day short of 1,095. It is possible
that the Citizenship Judge credited the respondent with an extra day because he
lived in Canada for 2 days before the relevant period, pursuant to subparagraph
5(1)(c)(i) of the Act – although he never stated that he did this.
[58]
Consequently, the Citizenship Judge’s finding
that the respondent met the physical presence threshold was premised on (1) an
unexplained reduction of the declared absences, (2) the attribution of an
internally inconsistent duration to the undeclared absences and (3) possible
unstated counting of presences which pre-dated the relevant period.
[59]
While a mathematical error alone would not
necessarily render a decision unreasonable, in the present case it informed the
Citizenship Judge’s approach in conducting a very cursory analysis under Koo.
He incorrectly assumed that the respondent had met the physical presence test
as an alternative basis for his decision.
[60]
The Citizenship Judge then omitted the
undeclared absences altogether in the Approval Synopsis and Notice to the
Minister, stating that there were 1,154 days of physical presence in Canada.
This further indicates a failure to engage with the evidence thoroughly.
[61]
In Canada (Citizenship and
Immigration) v Pereira, 2014 FC 574 at para 21, Justice LeBlanc recalled
that
Canadian citizenship is a privilege that
ought not to be granted lightly and the onus is on citizenship applicants to
establish, on a standard of balance of probabilities, through sufficient,
consistent and credible evidence, that they meet the various statutory
requirements in order to be granted that privilege [references omitted].
[62]
At para 31, he continued that it is reckless for
a Citizenship Judge to accept an individual’s testimony on residence in Canada
as true in the face of omissions and contradictions, and in the absence of
corroborating evidence.
[63]
Here, there were omissions in the citizenship
application which only came to light at the hearing. Even if the respondent did
not contradict himself, there was no corroborating evidence as to the duration
of his undeclared absences. It was not open to the Citizenship Judge to draw
arbitrary assumptions from the respondent’s testimony, so as to relieve him of
his burden to substantiate his application for citizenship.
C.
Did the Citizenship Judge err in assessing the
respondent’s credibility?
[64]
It is settled law that the courts owe
significant deference to credibility findings made by boards and tribunals (see
e.g. Aguebor v Canada (Minister of Employment and Immigration), [1993]
FCJ No 732 (FCA) at para 4; Lin v Canada (Citizenship and Immigration),
2008 FC 1052 at para 13; Fatih v Canada (Citizenship and Immigration),
2012 FC 857 at para 65). In the context of refugee claims, Justice Martineau
described credibility findings as “the heartland of the
Board’s juridiction”: Lubana v Canada (Minister of Citizenship and
Immigration), 2003 FCT 116 at para 7. The credibility findings of
Citizenship Judges deserve similar deference (Martinez-Caro v Canada (Citizenship and Immigration), 2011 FC 640 at para 46).
[65]
However, even on the issue of credibility, “deference is not a blank cheque”: Njeri v Canada (Citizenship and Immigration), 2009 FC 291 at para 12. A Citizenship Judge commits
a reviewable error if he fails to turn his mind to the question of whether
omissions and contradictions in the evidence undermine the credibility of an
individual (Canada (Citizenship and Immigration) v Baron, 2011 FC
480 at paras 17-18). This application is one of those rare cases where clear
error justifies the Court’s intervention.
[66]
The Minister alleges three problems with the
Citizenship Judge’s approach. First, he claims that the Citizenship Judge did
not engage with the respondent’s failure to declare 12 absences from Canada. Misrepresentation on this matter is relevant to credibility and must be expressly
considered in the Judge’s reasons (MCI v Singh Dhaliwal, 2008 FC 797 at
paras 24-26 [Singh]).
[67]
Second, the Minister contends that the
Citizenship Judge did not reasonably engage with the issue of the respondent’s
credit card use in the UAE during times he claimed to be in Canada. He simply accepted that a charge in Abu Dhabi was incurred by the respondent’s daughter who
had a secondary credit card on his account. The Minister argues that this
explanation raises further problems. The respondent’s oldest daughter was
between 9 and 12 years old when the transactions occurred. The respondent did
not explain how she could use a credit card on her own in the UAE. Further, the
applicant claimed that his children were enrolled in school in Oakville from September 2008 onwards and provided report cards to that effect. He never
explained how his daughter could go shopping in Abu Dhabi during the school
year.
[68]
Third, one of the respondent’s passports showed “VIOPP” entries in 2003 and 2006. The Citizenship
Officer who reviewed his application could not locate a US visa in the three passports the applicant had submitted, which suggested that he must have held
at least one additional passport. The possibility of an undisclosed passport
renders an application for citizenship deficient (Rahman, above, at
paras 51-55). According to the Minister, the Citizenship Judge erred by failing
to examine this issue when assessing the respondent’s credibility.
[69]
I note that the Citizenship Judge wrote that the
respondent showed him an expired passport with a US visa at the hearing.
Therefore, he could reasonably satisfy himself that the respondent was credible
on the matter of undisclosed passports.
[70]
However, the two other problems raised by the
Minister cast serious doubts on the Citizenship Judge’s determination that the
respondent was credible.
[71]
The respondent did not accurately declare all of
his absences from Canada during the relevant period. Justice Zinn explained the
task incumbent on a Citizenship Judge facing such a situation in Canada
(Citizenship and Immigration) v Elzubair, 2010 FC 298 at para 21 [Elzubair]:
It is part of the role of a citizenship
judge to ensure that citizenship is not obtained through misrepresentation. If
citizenship is granted in circumstances where it appears on the face of the
record that there may have been misrepresentation, the citizenship judge must
explain and justify why citizenship was granted; otherwise, the very value of
Canadian citizenship is debased.
[72]
In Singh, above, at para 26, this Court
held that a Citizenship Judge’s failure to assess the impact of
misrepresentations on an individual’s credibility rendered his decision
unreasonable:
…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.
[Emphasis added]
[73]
The present application is on all fours with Elzubair
and Singh. The Citizenship Judge erred by failing to explain and
justify his decision in light of possible misrepresentations. By the same
token, he did not reasonably assess the respondent’s credibility. He did not
offer transparent reasons for trusting the respondent.
[74]
The respondent argues that there was no
misrepresentation because he did not wilfully conceal his absences. That is
beside the point. As stated in Elzubair, above, at para 21, the law is
clear that the Citizenship Judge should have meaningfully discussed the
undeclared absences simply because it appeared “on the
face of the record that there may have been misrepresentations”. The
Minister does not bear the burden of proving that the respondent did in fact
make deliberate misrepresentations. The record disclosed a reasonable
possibility that this may have occurred, and so the Citizenship Judge should
have dug deeper.
[75]
The respondent cites immigration cases to
support his contention that misrepresentation requires a guilty mind (see e.g. Medel
v Canada (Minister of Employment and Immigration), [1990] FCJ No 318 (FCA);
Baro v Canada (Minister of Citizenship and Immigration), 2007 FC 1299; Osisanwo
v Canada (Citizenship and Immigration), 2011 FC 1126). However,
misrepresentations have different consequences for individuals applying for
permanent residence and those applying for citizenship.
[76]
In Elzubair, above, at para 22, the Court
noted that “there are minimal repercussions for
misrepresentation on citizenship applications”, since applicants can
apply again. By contrast, someone who makes a misrepresentation in a permanent
residence application may be found inadmissible and removed from Canada. In light of these important differences, it is far from clear that the
understanding of misrepresentation in the immigration jurisprudence ought to be
imported to applications for citizenship.
[77]
To conclude this point, I wish to make clear
that the Citizenship Judge erred by assigning a speculative duration to the
respondent’s undeclared absences without expressly considering whether his
failure to declare 12 trips affected his overall credibility.
[78]
The last problem raised by the Minister is even
more serious. The Citizenship Judge dismissed the Citizenship Officer’s
concerns with credit card activity in UAE currency for two reasons. First, he
accepted that the respondent bought airline tickets in UAE currency online,
while he was in Canada. Second, he accepted that the respondent’s daughter made
purchases in Abu Dhabi at a time when the respondent was in Canada. In his affidavit filed with the Court in this application, the respondent admits to
providing the first explanation but flatly denies providing the second.
[79]
This is a matter for concern. Either the
Citizenship Judge invented an explanation on the respondent’s behalf or the
respondent has provided untruthful sworn testimony to this Court. If the first
scenario occurred, the Citizenship Judge’s finding that the respondent was
credible is completely unjustified. One cannot impute credibility to someone by
attributing statements to him which he never made, and then deem those
statements credible. If the second scenario occurred, the respondent’s
willingness to mislead the Court further undermines his credibility.
[80]
With respect to credit card activity, the
Citizenship Judge also failed to investigate transactions which apparently
occurred in the United States on days when the respondent claimed to be in Canada, namely: April 18, 2009; May 27, 2010; and July 9, 2010. The respondent counters
that the Citizenship Officer did not flag this as a concern in his FPAT. That
is irrelevant. The Citizenship Judge was the decision-maker and had the task of
reviewing the entire record before rendering a decision. No error or omission
by a Citizenship Officer could relieve him of that task. These transactions
raise serious concerns. Ideally, they should have been examined by the
Citizenship Judge.
[81]
At the same time, the Court recognizes that the
credit card statements are lengthy and that a Citizenship Judge cannot be
expected to parse such evidence microscopically. If this were the only ground
raised by the Minister, the Court would not have intervened. Since the decision
will be quashed for other reasons, though, it is to be hoped that that the
decision-maker who considers this citizenship application next will investigate
the matter.
D.
Did the Citizenship Judge err in applying the qualitative test?
[82]
In my view, the Citizenship Judge did not
ground his conclusion that the respondent has centralized his existence in Canada on transparent and intelligible reasons. In this case, the Minister is not asking
the Court to reweigh the evidence. Indeed, that would be inappropriate (Canada (Citizenship and Immigration) v Anderson, 2010 FC 748; Canada (Citizenship and Immigration) v Mueller, 2009 FC 1066; Canada (Citizenship and
Immigration) v Sadek, 2009 FC 549). Rather, the Minister correctly argues
that the Citizenship Judge failed to engage with contradictory evidence when
giving his decision.
[83]
To begin, the Citizenship Judge underestimated
the respondent’s physical absences from Canada during the relevant time period.
By maintaining that he had 306 days of absence, the Citizenship Judge made it
seem as though he met the quantitative test for citizenship. In that case, it
would not have even been necessary to conduct a Koo analysis, since a
person who has been physically present in Canada for more than three years
during the residence period has clearly established himself in Canada for the purposes of the Act.
[84]
However, the number given by the Citizenship
Judge in the Approval Synopsis, repeated in his Notice to the Minister, does
not take into account the undeclared absences discovered at the hearing. The
Citizenship Judge unreasonably attributed a 60 day duration to those absences.
Even if this assumption – which is favourable to the respondent – were
accepted, the result would be 1,093 days of physical presence, which
constitutes a shortfall.
[85]
In the Court’s opinion, the Citizenship Judge’s
erroneous determination that there was no shortfall influenced his Koo
analysis. He never stated that he would have found the respondent eligible for
citizenship if there had been a shortfall. The respondent speculates that any
mathematical error committed by the Judge did not impact his conclusion. In
fact, it is far from clear that the Judge would have granted citizenship if he
had understood that a shortfall existed even when he attributed a duration to
Mr Vijayan’s trips that was extremely favourable to him.
[86]
Further, the Citizenship Judge offers no
explanation for his finding that the respondent’s frequent trips outside Canada resulted from a clearly temporary situation. It is not obvious from the record that
the respondent intends to cease his business travel to the UAE or the travel
related to his photography anytime soon. One can plausibly assume that the
respondent has every intention of continuing his frequent travels to the UAE to
collect the more than $3 million owing to him, and also of preserving his
reputation as a world class photographer. The Citizenship Judge’s discussion of
this issue was manifestly insufficient.
[87]
By his own admission, the respondent maintains
the pretence of residing in the UAE in order to compel payment from his
debtors. The Citizenship Judge took note of this fact but did not stop to ask
whether it showed that Mr Vijayan has not truly centralized his life in Canada. This was a reviewable error. The jurisprudence is clear that an individual does not
meet the Koo standard if he splits his residence between two or more
countries. Justice Snider’s comments in Canada (Citizenship and
Immigration) v Willoughby, 2012 FC 489 at para 9, are instructive:
Indeed, almost every fact before the
Citizenship Judge points away from a grant of Canadian citizenship. Not only
had Ms. Willoughby spent 745 days out of Canada, her pattern of absences was
not about to change. Ms. Willoughby maintains a dwelling in Australia that she uses during her visits with her immediate family members (her daughters and
grandchildren) in Australia. Even though Ms. Willoughby has a home and
husband in Canada, her extensive absences from Canada constitute “a structural
mode of living abroad rather than just a temporary situation” (Canada (Minister of Citizenship and Immigration) v Camorlinga-Posch, 2009 FC
613 at para 50, 347 FTR 37 [emphasis omitted]). The most that can be said is
that Ms. Willoughby has established two homes – one in Canada and one in Australia. As pointed out by Justice Martineau in Canada (Minister
of Citizenship and Immigration) v Chen, 2004 FC 848 at para 10, [2004] FCJ
No 1040:
When absences are a regular
pattern of life rather than a temporary phenomenon, they will indicate a life
split between two countries, rather than a centralized mode of existence in
Canada, as contemplated by the Act.
[Emphasis added]
[88]
The Citizenship Judge should have queried
whether the respondent lives a life split between two or more countries (Canada, the UAE and arguably the United States), instead of uncritically accepting that he has
established himself in Canada simply because he owns a family residence in Oakville. At first blush, the respondent’s incessant travel appears to point towards “a structural mode of living abroad rather than just a
temporary situation”: Canada (Citizenship and Immigration) v
Camorlinga-Posch, 2009 FC 613 at para 50, cited in Willoughby,
above, at para 9. Of course, the opposite finding remained open to the trier of
fact. However, his decision is unreasonable because he did not rigorously
analyze the contradictory evidence.
[89]
I also observe that the Citizenship Judge did
not discuss the extremely low income declared in Canada by Mr Vijayan for the
first three years of the relevant period. These numbers are incongruous in
light of the respondent’s evident resources. They suggest that his economic
activity was centred in another country. They are one more piece of the puzzle
that the Citizenship Judge failed to address.
VI.
Remedy
[90]
The Court will grant the Minister’s application
for judicial review without costs. In the past, the appropriate remedy would
have consisted in returning the file to the Citizenship Judge for
redetermination. However, recent amendments to the Act have changed this.
[91]
Section 35 of the Strengthening Canadian
Citizenship Act is a transitional provision which reads as follows.
Any decision that is made under section 5, 9
or 11 of the Citizenship Act before the day on which subsection 12(1)
comes into force and that is set aside by the Federal Court and sent back for a
redetermination on or after the day on which that subsection comes into force
is to be determined in accordance with that Act as it reads on that day.
[92]
Subsection 12(1) came into force on August 1,
2014, pursuant to an Order in Council. It amended subsection 14(1) of the Citizenship
Act.
[93]
Here, the decision under review was rendered
before subsection 12(1) came into force but it is being sent back for
redetermination after that date. Consequently, the Act as it read once
subsection 12(1) came into force applies.
[94]
Subsection 14(1) of the Citizenship Act,
as amended by subsection 12(1) of the Strengthening Canadian Citizenship Act,
provides that:
14. (1) If an application is accepted for
processing and later referred to a citizenship judge because the Minister is
not satisfied that the applicant meets the requirements of the following
provisions, the citizenship judge shall determine whether the applicant meets
those requirements within 60 days after the day on which the application is
referred:
(a) paragraph 5(1)(c), in the case of an
application for citizenship under subsection 5(1);
(b) paragraph 5(5)(d), in the case of an
application for citizenship under subsection 5(5); and
(c) paragraph 11(1)(d), in the case of an
application for resumption of citizenship under subsection 11(1).
[95]
The appropriate remedy, therefore, is to return
the matter for redetermination by the Minister, who will determine whether Mr
Vijayan meets the residence requirements under the Act. If the Minister is
satisfied that this is the case, he shall grant him citizenship. If the
Minister is not satisfied, he shall once more refer the matter to a Citizenship
Judge.
[96]
The parties did not propose any question for
certification and none will be certified.
Email this Content