Docket: T-1785-14
Citation:
2015 FC 623
Montréal, Quebec, May 12, 2015
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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AL-ASKARI, SAMI
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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
I.
Introduction
[1]
This is an application for judicial review of a
decision rendered by a Citizenship Judge refusing the Applicant’s application
for citizenship on the basis that the Applicant failed to meet the requirements
of paragraph 15(1)(c) of the Citizenship Act, RSC 1985, c C-29
[Act].
II.
Factual Background
[2]
The Applicant was born in 1989 in Abu Dhabi,
United Arab Emirates [UAE] and became a permanent resident of Canada on
July 8, 2004.
[3]
The Applicant filed an application for
citizenship on June 8, 2011. Therefore, the relevant time period for the
purposes of determining residency in accordance with paragraph 5(1)(c)
of the Act is from June 8, 2007 to June 8, 2011.
[4]
The Applicant attended an interview with a
citizenship officer in March 2013 and, upon referral, appeared before the
Citizenship Judge on November 20, 2013.
[5]
On December 12, 2013, the Applicant
submitted additional documentation relating to his travel activities.
III.
Impugned Decision
[6]
In a letter dated June 26, 2014, the
Citizenship Judge communicated her decision (dated January 20, 2014) to
the Applicant, wherein she refuses the Applicant’s application for citizenship
on the basis that the Applicant failed to meet the residency requirements for
the applicable four-year period. In particular, the Citizenship Judge
concluded:
[…] I am not satisfied that the information
submitted allows me to conclude that Mr. AL-ASKARI was physically and
distinctly present in Canada for at least 1 095 days during the relevant
time period under examination as prescribed by law to meet the requirements of
subsection 5(1)c) of the Citizenship [Act].
(Decision and reasons, Certified Tribunal
Record, at p 13).
[7]
In the reasons, the Citizenship Judge
acknowledges receipt of additional documents in December 2013 and January 2014
submitted by the Applicant, which included officially sealed school transcripts
and income tax declarations.
[8]
First, the Citizenship Judge noted discrepancies
in respect of the Applicant’s declared absences from Canada, as found in his
Original Application and Residency Questionnaire. According to the Citizenship
Judge, although these variations in respect of length of absences leave the
Applicant within the requisite 1,095 days prescribed under the Act, they
nonetheless impugn the Applicant’s credibility.
[9]
The Citizenship Officer then proceeded to
analyze the official travel documents provided by the Applicant in support of
his application for citizenship: the translated UAE Residency and Nationality
System Report and the Applicant’s three Syrian passports, two of which cover
the entire period under examination.
[10]
The Citizenship Judge raised numerous concerns
pertaining to the passports used by the Applicant in his travels, as evidenced
in the Applicant’s Residency and Nationality System Report for the UAE. In sum,
the Citizenship Judge found that the evidence raised “doubts
as to the completeness [of] the Applicant’s declarations regarding his absences
from Canada” and that she could therefore not “rely
on these declarations with any great degree of confidence” (Decision and
Reasons, Certified Tribunal Record, at p 16).
[11]
The Citizenship Judge then assessed additional
documentary evidence adduced by the Applicant, such as evidence pertaining to
education in Canada, banking and financial transactions, tenancy, social ties
and other indicators of residence, in order to validate the Applicant’s “physical” and “distinct”
presence in Canada for the relevant timeframe.
[12]
In particular, the Citizenship Judge noted that
segments of the four-year relevant timeframe were not accounted for and that
portions of the evidence amounted to “passive
indicators” of residency.
[13]
The Citizenship Judge ultimately found that the
evidence was “incomplete, inconsistent and unclear”
and did not form sufficient and “satisfactory indicia
of residence” (Decision and Reasons, Certified Tribunal Record, at p
19).
[14]
These findings led the Citizenship Judge to
conclude:
The sum effect of all the above is that I am
unable to determine with any degree of confidence or accuracy the actual number
of days the Applicant was within Canada and the actual number of days that the
Applicant was absent from Canada. I find that, on a balance of probabilities,
the evidence before me does not reasonably show nor suffice to establish
residence in the Applicant’s case.
(Decision and Reasons, Certified Tribunal
Record, at p 19)
IV.
Legislative Provisions
[15]
Section 5 of the Act outlines the requirements applicants
must fulfill in order to receive Canadian citizenship. Notably, paragraph 5(1)(c)
provides that permanent residents must demonstrate that they have accumulated
three years of residence in Canada within the four years preceding the date of
their application:
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Grant of citizenship
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Attribution de la citoyenneté
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5. (1) The Minister shall grant citizenship to any person who
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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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V.
Issue
[16]
This application raises the following issue:
Did the Citizenship
Judge err in finding that the Applicant failed to meet the requirements of
physical presence in Canada pursuant to paragraph 5(1)(c) of the Act?
VI.
Standard of Review
[17]
A Citizenship Judge’s decision in respect of
whether an applicant has met the residency requirements for the purposes of
establishing citizenship is reviewable on the standard of reasonableness (Chaudhry
v Canada (Minister of Citizenship and Immigration), 2011 FC 179 at para 20
[Chaudhry]; Atwani v Canada (Minister of Citizenship and Immigration),
2011 FC 1354 at para 10 [Atwani]).
[18]
The highly discretionary nature of the
Citizenship Judge’s findings attracts considerable deference from this Court:
[14] It is now settled law that the standard
of review applicable to the decisions of Citizenship Judges is that of
reasonableness: see, for example, Zhang v. Canada (Citizenship and
Immigration), 2008 FC 483; Chen v. Canada (Citizenship and Immigration),
2007 FC 1140. Whether dealing with questions of mixed fact and law, as when
applying one of the jurisprudential tests of the concept of residency to the
particular facts of the case, or purely factual questions, as when computing
days of absence, Dunsmuir v. New Brunswick (2008 SCC 9) instructs us
that the reviewing court should show deference and resist substituting its own
view for that of the Citizenship Judge. To the extent that the impugned
decision is intelligible and justified and can be considered a defensible outcome
in respect of the facts and the law, it should not be set aside on judicial
review: Paez v. Canada (Citizenship and Immigration), 2008 FC 204.
(El Falah v Canada (Minister of
Citizenship and Immigration), [2009] FCJ 1402 at para 14)
[19]
As such, it is not within this Court’s mandate
to substitute its view for the Citizenship Judge’s findings of fact and of
mixed fact and law (Canada (Minister of Citizenship and Immigration) v
Vijayan, 2015 FC 289 at para 64; Qureshi v Canada (Minister of
Citizenship and Immigration), 2009 FC 1081 at para 38).
VII.
Analysis
[20]
The Applicant bears the onus of providing
sufficient evidence demonstrating that he meets the residency requirements set
out in paragraph 5(1)(c) of the Act (Mizani v Canada (Minister of
Citizenship and Immigration), 2007 FC 698 at para 19; Chaudhry,
above at para 25). Justice Judith A. Snider’s reasoning in Atwani,
above, is instructive:
[12] The Applicant submits that the
Citizenship Judge erred by failing to make a specific determination of how many
days the Applicant was actually physically present in Canada. In the absence of
such a determination, the Applicant argues, the Judge cannot reasonably have
concluded that the residency requirement of s. 5(1)(c) was not met. This
argument, in my view, is fatally flawed. The burden is on the Applicant - not
on the Citizenship Judge - to establish, with clear and compelling evidence,
the number of days of residence. In this case, the Applicant failed to provide
consistent and credible evidence with respect to his absences from Canada.
[13] As recently stated by Justice Rennie in
Abbas v Canada (Minister of Citizenship and Immigration), 2011 FC 145 at
para 8, [2011] FCJ No 167:
Irrespective of which test is
applied, each applicant for citizenship bears the onus of establishing
sufficient credible evidence on which an assessment of residency can be based,
whether it is quantitative (Re Pourghasemi) or qualitative (Koo).
[Emphasis added.]
[21]
In the matter at hand, the Applicant was
required to demonstrate at least 1,095 days of physical presence in Canada
within the four-year period between June 2007 and June 2011.
[22]
The Citizenship Judge ultimately found that the
Applicant’s evidence lacked clarity, credibility, and was overall ambiguous,
which led her to conclude that the Applicant failed to meet his burden of
establishing his physical presence in Canada for the relevant time period.
[23]
The Applicant claims that the Citizenship
Officer made mathematical calculation errors in respect of the Applicant’s
number of days of absence from Canada, therefore unreasonably impugning his
credibility. The Applicant argues that the Citizenship Judge erred in finding
that the Applicant’s passport data, or even proof of his continued enrolment in
educational institutions in Canada, as evidenced by academic transcripts and
attestations, are inconclusive, in and of themselves, to determine his physical
presence in Canada for the minimum requisite 1,095 days. Moreover, the
Applicant submits that in applying the strict physical presence test, the
Citizenship Judge’s findings in respect of other indicators of residence such
as banking, housing and other social activities are superfluous.
[24]
The Court finds that the Applicant’s submissions
amount to a disagreement with the Citizenship Judge’s weighing of the evidence
and fail to demonstrate a reviewable error.
[25]
It is this Court’s view that the Citizenship
Judge conducted a thorough assessment of the evidentiary record before her and
identified numerous shortcomings in respect of the evidence of the Applicant’s
physical presence in Canada during the material four-year period.
[26]
Upon review of the Citizenship Judge’s decision
and reasons, parties’ submissions and the Certified Tribunal Record, the Court
finds no basis upon which it may intervene.
VIII.
Conclusion
[27]
In light of the above, the Court’s intervention
is unwarranted.
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