Docket: T-1107-15
Citation:
2016 FC 23
Ottawa, Ontario, January 11, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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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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HOMAYOUN
SHAHNAVAZ
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Minister of Citizenship and Immigration [the
Minister] has brought an application for judicial review pursuant to s 22.1(1)
of the Citizenship Act, RSC 1985, c 29 [the Act]. The Minister seeks to
set aside the decision of a Citizenship Judge [the Judge] to approve the
application for Canadian citizenship of Homayoun Shahnavaz. The Judge found
that Mr. Shahnavaz had demonstrated that he was resident in Canada for at
least three of the four years preceding his application, as required by s
5(1)(c) of the Act.
[2]
For the reasons that follow, I have concluded
that there was sufficient evidence upon which the Judge could reasonably find
that Mr. Shahnavaz had met the residency requirement under the Act. The
application for judicial review is therefore dismissed.
II.
Background
[3]
Mr. Shahnavaz is 78 years old and a citizen of
the Islamic Republic of Iran. He arrived in Canada with his wife and children
on September 13, 2004, and became a permanent resident the same day.
[4]
Mr. Shahnavaz applied for Canadian citizenship
on April 4, 2010. In order to meet the residency requirement under s 5(1)(c) of
the Act, an applicant must have accumulated at least three years of residence
in Canada, or a total of 1,095 days, within the four years immediately
preceding the application for citizenship. The parties agree that the relevant
period for determining whether Mr. Shahnavaz met the residency requirement
under the Act is from April 4, 2006 to April 4, 2010 [the relevant
period].
[5]
In his application for citizenship, Mr. Shahnavaz
declared three separate trips to Iran, resulting in a total absence from Canada
of 206 days.
[6]
On June 8, 2008, Mr. Shahnavaz appeared before
an officer with Citizenship and Immigration Canada [CIC]. The officer expressed
concern that Mr. Shahnavaz had not provided a passport to demonstrate his exit
from and entry to Canada for most of the relevant period. The officer asked him
to complete a residence questionnaire, and to provide photocopies of all
current and expired passports used to enter Canada, additional tax information,
proof of domicile such as tenancy agreements or mortgage payments, and boarding
passes or itineraries related to his absences from Canada.
[7]
On July 6, 2011, Mr. Shahnavaz provided CIC with
the following documents: (i) a copy of his valid passport; (ii) a written
explanation that his passport for the majority of the relevant period (which
was issued in 1999 and remained valid until December 13, 2009) was not
available, and he did not retain his flight itineraries or boarding passes;
(iii) letters from the Canadian Council for the Arts and Imagika Productions
confirming his participation in social and cultural activities in Canada; (iv)
a letter from the Hamsaz Cultural Centre confirming that he had volunteered
with them since 2005; (v) income tax statements from 2005 to 2009; (vi) various
documents outlining Mr. Shahnavaz’s medical history from 2006 to 2011,
including a letter from his oncologist dated June 29, 2011 stating that he had
been a patient since April 2006, was treated for colon cancer, and required
ongoing treatment over the following three years; and (vii) sworn letters from
his sister and brother-in-law attesting that he had lived with them since 2007.
[8]
On August 18, 2011, a citizenship officer [the
Officer] reviewed Mr. Shahnavaz’s application and concluded that the absence of
his 1999 passport made it difficult to determine whether he met the residency
requirement under the Act. The Officer requested that Mr. Shahnavaz
provide further documentation, including financial statements, bills to support
his residence in Canada, and medical records.
[9]
By letter dated October 4, 2011, CIC asked Mr.
Shahnavaz to provide additional information to establish his residency in
Canada during the relevant period, and requested that he complete a second
residence questionnaire. Mr. Shahnavaz responded that he was in Iran working on
a film project and provided a letter from his Iranian employer. He also
explained that he could not provide his 1999 passport because it had been
destroyed by Iranian authorities. He maintained that all relevant documents
were submitted in his initial application and on July 6, 2011.
[10]
On May 4, 2015, Mr. Shahnavaz appeared before
the Judge. He was accompanied by his niece, who confirmed his physical presence
in Canada during the relevant period. Following the hearing, the Judge
requested that Mr. Shahnavaz provide further documentation, including
employment records, notices of tax assessments, banking and credit card
statements, airline tickets, and additional information regarding his absences
from Canada.
[11]
By letter dated May 13, 2015, Mr. Shahnavaz sent
CIC a third residence questionnaire and provided the following documents: (i) a
letter explaining that the loss of his 1999 passport had resulted in some
miscalculations in his initial citizenship application; (ii) a letter
explaining that he had returned to Iran to raise funds for a Canadian film
production; (iii) three letters from medical professionals, all of which were
included in his initial application; (iv) a photocopy of a court summons from
Iran; (v) photocopies of his family members’ Canadian passports; (vi)
photocopies of his permanent residence card and British Columbia Services Card;
(vii) letters confirming his involvement in the film industry in Vancouver
since 2008; (viii) an affidavit stating that his 1999 passport may have been
misplaced six years earlier; (ix) photocopies of credit cards issued by Sears,
HBC and Wal-Mart, none of which contained any financial information; and (x)
confirmation from the Royal Bank of Canada that he had been a client since
December 2005, that he had opened a joint account with his son, and that he had
also opened a visa account on April 21, 2006 which became inactive on December
18, 2007.
III.
The Judge’s Decision
[12]
In a decision dated June 2, 2015, the Judge
found, on a balance of probabilities, that Mr. Shahnavaz had met the
burden of proving that he met the residency requirement under s 5(1)(c) of the
Act. The Judge noted that he was applying the quantitative test established in Re
Pourghasemi, [1993] FCJ No 232, 62 FTR 122, which
requires a strict counting of the days that an applicant has been physically
present in Canada.
[13]
The Judge noted that the unavailability of Mr.
Shahnavaz’s 1999 passport made it difficult to determine whether he met the
residency requirement under the Act. The Judge acknowledged that Mr.
Shahnavaz’s valid passport confirmed his entry to and exit from Canada for only
the last nine months of the relevant period. However, the Judge stated that “he was convinced the applicant has not had the missing
passport during the application process”, and that “the applicant has been consistent with his presentation over
eight years”.
[14]
The Judge found Mr. Shahnavaz to be credible and
forthright in answering questions, and also accepted the statements of his
niece, noting that she “represented the applicant as
having lived in Canada as described”. He found that Mr. Shahnavaz’s
three declared absences from Canada were confirmed by a report from the Canada
Border Services Agency’s Integrated Customs Enforcement System [ICES]. The
Judge also found that Mr. Shahnavaz’s banking records showed no activity during
the periods of his stated absences, but otherwise the account was “very active”. The Judge acknowledged that no records
were available prior to April 30, 2008. Based on the evidence, the Judge
concluded that there was a period of uncertainty from April 4, 2006 to April
30, 2008 [the period of uncertainty].
[15]
The Judge held that there was sufficient
objective evidence to find that Mr. Shahnavaz was physically present in Canada
during the period of uncertainty. He determined that it was highly improbable
that Mr. Shahnavaz would have been able to travel during this period, because
of his need for ongoing medical treatment following his diagnosis of colon
cancer in 2006, which included chemotherapy. In light of his medical history,
the Judge held that the missing passport was unlikely to reveal any absences
from Canada prior to April, 2008. The Judge therefore approved Mr. Shahnavaz’s
application for citizenship, noting that the information he provided had been
consistent throughout the application process.
IV.
Issue
[16]
The sole issue in this application for judicial
review is whether the Judge reasonably found Mr. Shahnavaz to have met the
residency requirement under the Act.
V.
Analysis
[17]
A citizenship judge’s determination of whether
the residency requirement under the Act has been met is a question of mixed
fact and law, and is reviewable by this Court against the standard of reasonableness
(Kohestani v Canada (Minister of Citizenship and Immigration), 2012 FC
373 at para 12; Idahosa v Canada (Minister of Citizenship and Immigration),
2013 FC 739 at para 9).
[18]
There were inconsistencies in Mr. Shahnavaz’s
evidence respecting the reasons why his 1999 passport was not available. During
his initial interview with a citizenship officer on June 8, 2011, Mr. Shahnavaz
did not provide a passport for the relevant period because he “forgot to bring his old passports with him”. In a
letter dated July 5, 2011, Mr. Shahnavaz informed CIC that he could not provide
his old passport or his boarding passes and flight itineraries “because he was not aware he had to keep them”.
Following several requests by CIC, Mr. Shahnavaz explained in a letter dated October
24, 2011 that his old passport was destroyed by Iranian authorities. Finally,
in an affidavit dated May 4, 2015, he said that he “might
have misplaced the passport” six years ago.
[19]
The Judge acknowledged that the absence of the
1999 passport was of particular concern. However, it is unclear whether he
turned his mind to the inconsistencies in Mr. Shahnavaz’s evidence. At para 15
of his decision, the Judge said only that he was convinced Mr. Shahnavaz “did not have the passport during the application process”
and that he had been “consistent with his presentation
over the years”.
[20]
This Court has cautioned that it would be “unusual and perhaps reckless” to rely upon the
testimony of an individual to establish his residency with no supporting
documentation (Canada (Minister of Citizenship and Immigration) v El
Bousserghini, 2012 FC 88 at para 19). Nevertheless, the Judge’s assessment
of Mr. Shahnavaz’s credibility is entitled to significant deference (Martinez-Caro
v Canada (Minister of Citizenship and Immigration), 2011 FC 640 at para
46).
[21]
The central issue in this case is whether the
evidence relied upon by the Judge was sufficient to overcome the concern
arising from the absence of Mr. Shahnavaz’s 1999 passport. The remaining
evidence comprised the following: (i) the periods of absence reported by Mr. Shahnavaz
in his citizenship application were consistent with the information found in
ICES; (ii) the joint bank account showed no activity during periods of absence
but was otherwise very active; and (iii) Mr. Shahnavaz was diagnosed with
cancer in 2006, required ongoing treatment for three years, and was treated for
a urinary tract infection in February, 2007.
[22]
The Minister says that the remaining evidence
was not sufficient for the Judge to find that Mr. Shahnavaz had met the heavy
burden of establishing that he was physically present in Canada for the
requisite number of days under the Act. The Minister notes that the banking
information was for a period ending in 2008, and one of the accounts was held
jointly with Mr. Shahnavaz’s son. Furthermore, while periods of inactivity
corresponded with Mr. Shahnavaz’s absences, there were also periods of
inactivity that fell outside the periods of declared absence. According to the
Minister, it was unreasonable for the Judge to rely on Mr. Shahnavaz’s
medical history to find that he was probably present in Canada during the
period of uncertainty. The Minister notes that there were lengthy gaps between
Mr. Shahnavaz’s medical appointments, that none of his physicians indicated
that he was unable to travel, and that he did in fact travel for extended
periods in 2010 and 2011.
[23]
In my view, the Judge’s decision demonstrates
that he reviewed all of the evidence and found that it was sufficient to
corroborate Mr. Shahnavaz’s claim that he remained in Canada during the period
of uncertainty. The Judge does not appear to have considered the inconsistency
in Mr. Shahnavaz’s explanations for the absence of his passport. Nevertheless,
the Judge acknowledged that the missing passport made it difficult to establish
Mr. Shahnavaz’s residency, and he therefore clearly turned his mind to the
issue.
[24]
The evidence available to the Judge comprised
not only Mr. Shahnavaz’s medical history and banking statements, but also sworn
letters from his sister and brother-in-law affirming that he had lived with
them since 2007. The Judge also placed significant weight on the statements of
Mr. Shahnavaz’s niece during the interview, noting that they confirmed “that he had lived in Canada as described”. There is
no reason to doubt the veracity of the niece’s statements, or those of the
sister and brother-in-law.
[25]
Given the deference that is owed by this Court
to the Judge’s credibility findings, I am unable to say that the Judge’s
conclusion falls outside of the range of possible, acceptable outcomes that are
defensible in respect of the facts and law (New Brunswick (Board of
Management) v Dunsmuir, 2008 SCC 9 [Dunsmuir]). While I may not have
come to the same conclusion as the Judge, it is not the role of this Court to
reweigh the evidence (Canada (Minister of Citizenship & Immigration) v
Anderson, 2010 FC 748 at para 26, citing Dunsmuir at para 47). The
Judge’s decision to approve Mr. Shahnavaz’s application for Canadian
citizenship was therefore reasonable.
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