Date: 20150508
Docket: T-817-14
Citation: 2015 FC 605
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, May 8, 2015
PRESENT: The Honourable Madam Justice St-Louis
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Plaintiff
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and
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JIHAD ACHKAR
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MARIE SASSINE
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YOUMNA ACHKAR
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YASMINA ACHKAR
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ANIS ACHKAR
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IYAD ACHKAR
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Defendants
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
The Minister of Citizenship and Immigration (the
Minister) seeks summary judgment declaring that the defendants, six members of
the same family, obtained their Canadian citizenship by false representations
or fraud, or by knowingly concealing material circumstances
[2]
I am satisfied that the defendants have not
raised a genuine issue for trial as to whether they obtained their Canadian
citizenship as a result of false representations made in their citizenship
applications and consequently I will issue the summary judgment sought by the
Minister.
II.
BRIEF STATEMENT OF FACTS
[3]
The defendants are a family made up of the spouses,
Jihad Achkar and Marie Sassine, and their four children, Youmna,
Yasmina, Anis and Iyad.
[4]
On July 6, 2001, the defendants arrived in
Canada and were landed as permanent residents of Canada.
[5]
On January 20, 2005, Ms. Sassine
signed her application for Canadian citizenship and also signed the application
for each of the couple’s children. Thus, the reference period for their
applications is from July 6, 2001, to January 20, 2005.
[6]
Ms. Sassine stated on her application that
she was absent from Canada for 157 days and present 1137 days during
the reference period. Ms. Sassine stated on the application that she
signed for each child that they were not absent from Canada for six months or
more during the reference period.
[7]
On March 4, 2005, Mr. Achkar signed
his application for Canadian citizenship. The reference period for his
application is from July 6, 2001, to March 4, 2005.
[8]
Mr. Achkar stated on his application that he
was absent from Canada for 138 days and present 1199 days during the
reference period.
[9]
Moreover, all the members of the family indicated
only Canadian home addresses during the entire reference period.
[10]
On May 30, 2006, Mr. Achkar was
granted Canadian citizenship and on April 11, 2006, Ms. Sassine and
the four children were granted Canadian citizenship.
[11]
On November 3, 2011, pursuant to section 18
of the Citizenship Act, RSC 1985, c C-29 (Citizenship Act), the
Minister served on each defendant notices of citizenship revocation dated June 29,
2011, (the Notices) informing them that he intended to file a report with the
Governor in Council stating that they obtained Canadian citizenship by false
representation or fraud or by knowingly concealing material circumstances so
that their Canadian citizenship could be revoked.
[12]
In the Notices sent to Mr. Achkar and Ms. Sassine,
the Minister claims that they [Translation]
“failed to declare all of [their] absences from Canada
during the four years immediately preceding the date of their citizenship
applications [and made] false representations on their citizenship applications
with respect to the residency requirement during the four years immediately
preceding the date of their citizenship applications.”
[13]
In the Notices sent to the children, the
Minister claims that [Translation]
“[their] parents failed to declare all of their
absences from Canada during the four years immediately preceding the date of
their citizenship applications [and] provided false information on their
citizenship applications with respect to their residency in Canada during the
four years immediately preceding the date of their citizenship applications.”
[14]
Indeed, according to the evidence adduced by the
Minister, the parents allegedly were not present in Canada for the number of
days indicated in their forms, the children allegedly were absent from Canada
for over six months and all the family members allegedly did not live at the home
addresses provided.
[15]
Indeed, contrary to the information provided in
their citizenship applications, the defendants came to Canada on July 6,
2001, to obtain their permanent resident status, stayed in the country for a
few weeks to compete the administrative procedures and then left to live in
Lebanon. During the following two years, the parents returned to Canada only a
handful of times and the children never returned.
[16]
The family came to Canada and lived there only
from July 2003 to July 2006.
[17]
On November 3, 2011, the defendants requested
that their case be referred to the Federal Court in accordance with the
provisions of subsection 18(1) of the Citizenship Act.
[18]
On April 3, 2014, the Minister filed a statement
of claim under Rule 171(a)(i) of the Federal Courts Rules,
SOR/98-106 (the Rules). On September 15, 2014, the defendants filed their
statement of defence and on September 30, 2014, the Minister filed his
reply.
[19]
In their statement of defence, the defendants
admit that they made false representations on their applications and that they
were not present in Canada the number of days stated in their Canadian
citizenship applications. It is difficult to follow their reasoning when they try
to justify their actions since they state that they were not informed of the
need to be physically present in Canada while at the same time claiming that
they were informed of that requirement by an officer of the Canadian Border
Services Agency in December 2002, and thus they then decided to reside in
Canada.
[20]
The defendants allege that they were scammed by
their immigration consultant, they made their representations in good faith,
they are innocent even if they made false or misleading representations and
that the parents and particularly the minor children did not intend to deceive
the Minister. The defendants even contend that the Minister himself is
responsible for their actions since his lax border controls encourage
applicants for Canadian citizenship to commit fraud.
[21]
On October 28, 2014, the defendants filed
an affidavit of documents under Rule 223 and on November 3, 2014, the
Minister filed an affidavit of documents under the same rule.
[22]
However, the defendants did not file any
affidavit to establish the facts within their personal knowledge.
III.
ISSUE
[23]
The Court must determine whether this case
raises a genuine issue for trial or, on the contrary, whether it may find that
a genuine issue for trial has not been raised and consequently grant summary
judgment.
IV.
LEGISLATIVE FRAMEWORK
A.
Loss of Citizenship
[24]
Subsection 10(1) of the Citizenship Act
provides that “where the Governor in Council, on a
report from the Minister, is satisfied that any person has obtained … citizenship
... by false representation or fraud or by knowingly concealing material
circumstances”, the person ceases to be a citizen (paragraph 10(1)(a),
subject to section 18 of this Act.
[25]
Subsection 18(1) of the Citizenship Act
provides, however, that the Minister shall not make a report under section 10
unless the Minister has given notice of his intention to do so to the person in
respect of whom the report is to be made and (a) that person does not within
thirty days after the day on which the notice is sent, request that the
Minister refer the case to the Court; or (b) that the person does so request
and the Court decides that there has been false representation or fraud or
knowing concealment of material circumstances.
[26]
The referral set out in subsection 18(1) of the Citizenship
Act has been deemed “essentially an investigative
proceeding used to collect evidence of facts surrounding the acquisition of
citizenship, so as to determine whether it was obtained by fraudulent means”
(Canada (Minister of Citizenship and Immigration) v Obodzinsky,
2002 FCA 518, at para 15).
[27]
Thus, as Justice Mactavish stated, “[t]he task for the Court in a proceeding such as this is to
make factual findings as to whether the defendants obtained their Canadian
citizenship by false representation or fraud or by knowingly concealing
material circumstances. Findings made by this Court under paragraph 18(1)(b)
of the Citizenship Act are final, and cannot be appealed.” (Canada
(Minister of Citizenship and Immigration) v Houchaine, 2014 FC 342 at
para 12).
[28]
The Court’s findings may form the basis of a
report submitted by the Minister to the Governor in Council for the revocation
of citizenship.
[29]
The burden is on the Minister to demonstrate, on
the balance of probabilities, that the defendants obtained their Canadian
citizenship by false representation or fraud or by knowingly concealing
material circumstances (Canada (Minister of Citizenship and Immigration) v
Skomatchuk, 2006 FC 994 at para 21).
[30]
The Court has established certain principles in
that regard. Thus, citizenship applicants must have intended to mislead the
decision-maker so that a technical error made innocently or inadvertently does
not result in a declaration under section 10 (Canada (Minister of
Citizenship and Immigration) v Savic, 2014 FC 523 at para 74).
[31]
The Court has also established that “‘willfull blindness’, when practised by an applicant for
Canadian citizenship in the pursuit of his or her application, is not to be
condoned. ...In those circumstances, the applicant for Canadian citizenship,
when faced with a situation of doubt, should invariably err on the side of full
disclosure to a citizenship judge or citizenship official.” (Canada
(Minister of Citizenship and Immigration) v Phan, 2003 FC 1194 at para 33).
[32]
Last, in situation where a parent signs the
application for a minor child, the Court has confirmed that, since the Citizenship
Act permits a parent to make a citizenship application on behalf of their
minor child, any allegation of false representations or fraud or knowing
concealment of material circumstances must pertain to the acts or omissions of
the parent and thus, the child does not have to intend to mislead the
decision-maker (Canada (Minister of Citizenship and Immigration) v Zakaria,
2014 FC 864 at para 84).
B.
Summary Judgment
[33]
Rule 215 of the Federal Court Rules
states that the Court shall grant a summary judgment if on a motion for summary
judgment the Court is satisfied that there is no genuine issue for trial with
respect to a claim or defence. There is no genuine issue for trial when the
summary judgment proceeding “(1) allows the judge to
make the necessary findings of fact, (2) allows the judge to apply the law to
the facts, and (3) is a proportionate, more expeditious and less expensive
means to achieve a just result.” (Hryniak v Mauldin, 2014 SCC
7 at para 49).
[34]
In that type of proceeding, it is well settled
that the “defendant must put its ‘best foot forward’
and this requires that the defendant lead evidence and make an argument that
there is a genuine issue requiring a trial.” (Moroccanoil Israel Ltd
v Lipton, 2013 FC 667 at para 10).
V.
ANALYSIS
[35]
The defendants admit that they made false
representations in their citizenship applications and the Minister submitted
the documents needed to support his claims.
[36]
The Court reviewed the documents on the record
and is satisfied that the Minister met his burden and that the defendants made
false representations. Indeed, they failed to declare material facts,
specifically that for all intents and purposes they were absent from Canada
from July 2001 to July 2003, that the children were absent from
Canada for periods of six months or more and that the family members did not live
at the home address provided from July 2001 to July 2003. The copies
of the children's school records were probative here since they confirm that
the children went to school in Lebanon until the end of the 2003 school
year.
[37]
The defendants chose not to adduce affidavit
evidence to support their arguments. They have no obligation under the Rules to
adduce such affidavits; however, failure to do so considerably limits their
evidence and their submissions. Indeed, filing an affidavit makes it possible
to establish the facts that a party relies upon in its representations (Palmar
Inc v Canada, (1998), 98 GTC 6281 at para 4 (FCTD)) and in a summary
judgment matter, the Court weighs the evidence contained in the affidavits to
determine if there is a genuine issue for trial (0871768 BC Ltd v
Aestival (Vessel), 2014 FC 1047 at para 55).
[38]
The defendants also submitted that they would
like a trial in order to be able to adduce the evidence to support their
defence. As mentioned above, they had to make their best arguments in relation
to this motion for summary judgment in order to prove that there is a genuine
issue for trial, and thus, the Court cannot agree with their position.
[39]
Since they chose not to submit affidavits, the
defendants did not adduce evidence to support their arguments, particularly evidence
of their understanding of whether there was a need to be physically present in
Canada during the period from July 2001 to July 2003. Moreover, it
should be recalled that they admitted in their statement of defence that they
made false representations in their citizenship applications and they
reiterated those admissions before the Court during the hearing.
[40]
Both in their statement of defence and before
the Court, they tried to claim that they were misled and confused in their interpretation
of the residency requirements for granting citizenship.
[41]
On the contrary, the Court is satisfied that the
defendants’ false representations and factual omissions are not innocent and
that if they had been in doubt, they should have disclosed all the information
about their situation in their citizenship applications.
[42]
Last, as mentioned above, the Court finds that
any allegation of false representations or fraud or knowing concealment of
material circumstances must pertain to the acts or omissions of the parent
acting on behalf of their children, and thus, the children do not have to have
intended to mislead the decision-maker
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
Each of the defendants, Jihad Achkar, Marie
Sassine, Youmna Achkar, Yasmina Achkar, Anis Achkar and Iyad Achkar obtained
citizenship under this Act by false representation or fraud or by knowingly concealing
material circumstances within the meaning of paragraph 18(1)(b) of the Citizenship
Act, RSC 1985, c C-29;‑
2.
The plaintiff is entitled to costs based on the
upper end of Column V of Tariff B to the Federal Courts Rules,
SOR/98-106 .
“Martine St-Louis”
Certified true translation
Monica F.
Chamberlain, Translator
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