Docket: T-348-15
Citation:
2015 FC 1247
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 4, 2015
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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RACHID DJEDDOU
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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.
Preliminary
[1]
The Court finds that while the applicant may
disagree with the citizenship judge’s assessment of the evidence, including the
determinative documentary evidence in this case, this does not make the
citizenship judge’s decision unreasonable (Al-Askari v Canada (Minister of
Citizenship and Immigration), 2015 FC 623 at para 24 [Al-Askari]).
II.
Introduction
[2]
This is an application for judicial review of a
decision dated February 2, 2015, in which a citizenship judge rejected the
applicant’s application for citizenship on the ground that the applicant did
not satisfy the requirements under subsection 5(1) of the Citizenship
Act, RSC 1985, c C-29 [Act].
III.
Facts
[3]
The applicant, 49-year-old Rachid Djeddou, arrived
in Canada on May 4, 2006, landing as a permanent resident. In his
application for Canadian citizenship, he stated that he was not a citizen or
permanent resident of any other country than Canada.
[4]
The applicant filed an application for
citizenship on August 3, 2009 [Application], for a reference period
spanning May 4, 2006, to August 3, 2009. The Application was first rejected
by a citizenship judge in a decision dated April 5, 2013. Following an
appeal from this decision (T‑924-13), the Application was re-examined by
a different judge. In a decision dated April 4, 2014, the Application was
rejected again. This decision was also successfully appealed, since the second
citizenship judge failed to review the new documents presented at the hearing.
Finally, in a decision dated February 2, 2015, the citizenship judge
rejected the applicant’s Application. This is the judicial review of that
decision.
IV.
Impugned decision
[5]
In her decision dated February 2, 2015, the
citizenship judge denied the applicant’s application for citizenship,
concluding that, on a balance of probabilities, he did not satisfy the
residency requirement set out in paragraph 5(1)(c) of the Act. The
judge applied the test described in Pourghasemi (Re), [1993] FCJ No 232,
[Pourghasemi], which is that of physical presence.
[6]
The citizenship judge found that the applicant
had provided little active evidence, making it difficult to establish his
physical presence in Canada. The citizenship judge noted that, during the
reference period, [translation] “the applicant did not have a job, did not undergo any
training, was not involved in any community, sports or social activities, and described
himself as a homemaker; it is impossible to verify how he spent his time”
(para 21 of the decision). The citizenship judge found, among other
things, that she could not consider the bank statements because they were from
joint accounts and that it was not credible that the applicant stayed at home to
take care of his children during the reference period given that his wife was
also at home. Moreover, the applicant testified that he only travelled to take
care of his mother, yet the evidence showed that he travelled a number of times
after his mother’s death on July 24, 2011.
[7]
The citizenship judge further found that the
passive evidence, such as the passport and the Canada Border Services Agency
[CBSA] report, could not support the applicant’s arguments since the passport
alone was not irrefutable evidence of presence in Canada. For these reasons,
the citizenship judge rejected the Application and concluded that, on a balance
of probabilities, it was impossible to determine for how many days the
applicant had been physically present in Canada.
V.
Issue
[8]
The Court finds that there is only one issue:
Did
the citizenship judge err in concluding that the applicant did not satisfy the
requirements regarding physical presence in Canada under paragraph 5(1)(c)
of the Act?
VI.
Statutory provisions
[9]
The following statutory provisions apply:
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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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. . .
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[…]
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(c) is a permanent resident within the meaning of
subsection 2(1) of the Immigration and Refugee Protection Act, has, subject
to the regulations, no unfulfilled conditions under that Act relating to his
or her status as a permanent resident and has, since becoming a permanent
resident,
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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,
a, sous réserve des règlements, satisfait à toute condition rattachée à son
statut de résident permanent en vertu de cette loi et, après être devenue
résident permanent :
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(i) been physically present in Canada for at least 1,460 days
during the six years immediately before the date of his or her application,
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(i) a été effectivement présent au Canada pendant au moins
mille quatre cent soixante jours au cours des six ans qui ont précédé la date
de sa demande,
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(ii) been physically present in Canada for at least 183 days
during each of four calendar years that are fully or partially within the six
years immediately before the date of his or her application, and
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(ii) a été effectivement présent au Canada pendant au moins
cent quatre-vingt-trois jours par année civile au cours de quatre des années
complètement ou partiellement comprises dans les six ans qui ont précédé la
date de sa demande,
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VII.
Positions of the parties
[10]
The applicant submits that he filed extensive
documentary evidence to corroborate his residence in Canada, such as bank
statements, financial activities, his medical history, his dealings involving
educational institutions and various personal and community activities, but
that the citizenship judge did not review and analyze this evidence, and
misinterpreted it. The applicant submits that the citizenship judge misapplied
the residency test as it is described in Koo (Re), [1993] 1 FCR
286, [1992] FCJ No 1107 (QL) [Koo]. Moreover, in light of the extensive
evidence supplied by the applicant, the citizenship judge should have explained
why she rejected the evidence (Muhanna v Canada (Minister of Citizenship and
Immigration), 2008 FC 1289).
[11]
The applicant submits that the judge erred in
concluding that the applicant’s passport did not constitute persuasive (determinative)
evidence of his presence in Canada and could not serve as prima facie
evidence of his presence in Canada (Saad v Canada (Minister of Citizenship
and Immigration), 2013 FC 570; Oueida v Canada (Minister of Citizenship
and Immigration), 2009 FC 1168). Moreover, the applicant submits that
the citizenship judge misassessed other evidence, such as the applicant’s
airline tickets, his dealings with Emploi Québec and his enrolment in a sports
club, and that she held the fact that he was receiving last-resort financial
assistance against him. The citizenship judge also drew negative inferences on
the applicant’s credibility by relying on trips made outside the reference
period and by concluding that it was impossible for him to be a homemaker. In
short, in light of the extensive evidence on the record, it was unreasonable
for the citizenship judge to conclude that the applicant did not meet the
requirements under paragraph 5(1)(c) of the Act.
[12]
For his part, the respondent submits that the
citizenship judge’s decision was reasonable since the applicant did not
establish that he had resided in Canada for 1,095 days during the relevant
period. The respondent notes that the citizenship judge could apply one of
three approaches to interpret paragraph 5(1)(c) of the Act and that
she chose the approach used in Pourghasemi. The applicant is therefore
making an error in submitting that the citizenship judge misapplied the test
set out in Koo.
[13]
The respondent argues that the applicant had the
burden of establishing, on a balance of probabilities, his presence in Canada (Dachan
v Canada (Minister of Citizenship and Immigration), 2010 FC 538) with
the help of clear and compelling evidence (Knezevic v Canada (Minister of
Citizenship and Immigration), 2014 FC 181 [Knezevic]; El
Falah v Canada (Minister of Citizenship and Immigration), 2009 FC
736). Since the applicant alleges that he spent 1,096 days in Canada, it
is possible that if he made a mistake when calculating the date of his departure
or arrival, be it in bad faith or inadvertently, he did not met the
1,095-day threshold under the Act. Among other things, the CBSA report
merely confirms the applicant’s entries into Canada, but not his exits, and his
airline ticket for May 15, 2009, containing a handwritten note indicating
that the travel date was changed to April 24, 2009, is not clear and
compelling evidence of his return on this date.
[14]
In short, the evidence provided by the applicant
does not establish his physical presence during the reference period. It was
therefore reasonable for the citizenship judge to conclude as she did.
VIII.
Standard of review
[15]
A citizenship judge’s findings of fact and of
mixed fact and law should be reviewed on the standard of reasonableness (El-Husseini
v Canada (Minister of Citizenship and Immigration), 2015 FC 116; Ukaobasi
v Canada (Minister of Citizenship and Immigration), 2015 FC 561; Sallam
v Canada (Minister of Citizenship and Immigration), 2015 FC 427).
IX.
Analysis
[16]
In the matter at bar, the applicant disagrees
with the citizenship judge’s assessment of the evidence. It is not within this
Court’s mandate to substitute its assessment of the evidence on the record for
that of the citizenship judge, and the Court owes deference to the citizenship
judge’s findings (Qureshi v Canada (Minister of Citizenship and Immigration),
[2010] 4 FCR 256, 2009 FC 1081; Al-Askari, above). Moreover,
the burden is on the applicant to establish clear and compelling evidence as to
his presence in Canada (Knezevic, above).
[17]
In her decision, the citizenship judge decided
to apply the approach set out in Pourghasemi, that of actual physical
presence in Canada. The case law is clear that citizenship judges may apply the
test of their choice, but may not blend tests (Saad v Canada (Minister of
Citizenship and Immigration), 2013 FC 570 at para 19; Mizani v
Canada (Minister of Citizenship and Immigration), 2007 FC 698). The
applicant’s argument that the citizenship judge misapplied the residency test
set out in Koo must therefore be rejected.
[18]
The other grounds raised by the applicant
concern the citizenship judge’s assessment of the evidence. The Court finds
that the applicant may disagree with the citizenship judge’s assessment of the
evidence, including the determinative documentary evidence in this case, but
this does not make her decision unreasonable (Al-Askari, above at
para 24).
[19]
It appears from the citizenship judge’s
decision, and from her handwritten notes on the interview with the applicant,
that the citizenship judge considered all of the evidence on the record. Her
decision is therefore reasonable.
X.
Conclusion
[20]
The Court finds that the citizenship judge’s
decision is reasonable. Consequently, the application for judicial review is
dismissed.
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