Docket: T-1462-15
Citation:
2016 FC 688
Ottawa, Ontario, June 20, 2016
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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LALLY, JOGINDER SINGH
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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.
Overview
[1]
The applicant, Mr. Joginder Singh Lally, is a
citizen of India and used to be a long-haul truck driver. He came to Canada in
July 2001 and became a permanent resident in July 2006. He applied for Canadian
citizenship on September 12, 2008.
[2]
After reviewing Mr. Lally’s application, his
residence questionnaire and other documents, the citizenship officer identified
some concerns with Mr. Lally’s file due to the lack of evidence supporting his physical
presence in Canada during the relevant period of reference and to his multiple
absences from the country. The matter was thus referred to a citizenship judge [the
Judge], who held a hearing with Mr. Lally where she questioned him and
discussed the issues of concern regarding his residence in Canada. The Judge
was not satisfied that Mr. Lally met the residency requirements to become
a citizen of Canada as she could not determine how many days Mr. Lally had been
effectively present in Canada during the period of reference. She therefore dismissed
Mr. Lally’s application for citizenship.
[3]
Mr. Lally has applied for a judicial review of
this decision. He claims that the Judge erred in refusing to grant him
citizenship and in finding him not credible. In response, the Minister of
Citizenship and Immigration [the Minister] submits that the Judge’s decision is
reasonable and amply supported by the evidence on the record.
[4]
The only issue to be determined is whether the
Judge’s conclusion that Mr. Lally did not meet the citizenship requirements is
reasonable.
[5]
For the reasons that follow, Mr. Lally’s
application for judicial review is dismissed. I am not convinced that the Judge’s
decision falls outside the range of acceptable and possible outcomes, or that
there are any grounds sufficient to justify this Court’s intervention. I also
find that the reasons for the decision adequately explain how the Judge found
that Mr. Lally had not met the residency requirements under paragraph 5(1)(c)
of the Citizenship Act, SRC 1985, c C-29 [the Act].
II.
Background
A.
The Judge’s decision
[6]
In her decision dated July 8, 2015, the Judge relied
on the physical residency requirement under paragraph 5(1)(c) of the Act, as
outlined in Pourghasemi (Re) (1993), 62 FTR 122 (FCTD) [Pourghasemi].
Pursuant to that paragraph (as it read at the time Mr. Lally submitted his
citizenship application), the Minister shall grant citizenship to any person
who, within the relevant four-year or 1,460-day period of reference, has
accumulated at least three years (or 1,095 days) of residence in Canada.
[7]
After summarizing the procedural steps leading
to her decision, including her review of the residence questionnaire and
documents submitted by Mr. Lally and Mr. Lally’s appearance at a hearing before
her, the Judge found that the evidence provided by Mr. Lally was incomplete and
not credible. More specifically, the Judge singled out the following
contradictions in Mr. Lally’s evidence:
- Mr. Lally self-reported 1,119 days of presence with no absences
but declared four incomplete absences in his residence questionnaire;
- Mr. Lally’s passport bore four entry stamps to the United
States, but no corresponding re-entries stamps into Canada;
- Mr. Lally declared only 778 days of presence in Canada in his initial
application, which amounted to just slightly over two years;
- Mr. Lally submitted evidence regarding two different addresses
of residence in Canada, one in Brampton, Ontario since August 2006, and
one in Montreal, Quebec since January 2007. Mr. Lally could not state how
long he had lived in either place and changed his answer many times at the
hearing. He notably contradicted himself on the duration of his residency
in Brampton, mentioning three years, then four years and finally “maybe seven years;”
- Mr. Lally only submitted 12 driver’s logs for the entire
four-year period of reference, all related to 2008, the last year of the
period. Mr. Lally explained this limited amount of evidence by stating
that his belongings had been stolen, but he did not provide a police
report to that effect.
[8]
The Judge noted that Mr. Lally’s declared days
of absence in both his initial application and his residence questionnaire were
impossible to follow, and that Mr. Lally could not explain why he had left
certain parts of the questionnaire blank. The Judge also found that Mr. Lally’s
lack of due diligence in providing accurate information undermined his
credibility.
[9]
The Judge concluded that “it was impossible to determine, on a balance of
probabilities, how many days [Mr. Lally] was actually present in Canada,
because there is insufficient evidence of his continued physical presence
during the periods that he claims to have been in Canada.” The Judge
thus determined that Mr. Lally had not met the residency requirements on the
basis of the Pourghasemi test.
B.
The standard of review
[10]
It is well established that the standard of
review applicable to the decisions made by a citizenship judge is
reasonableness (Canada (Citizenship and Immigration) v Baccouche, 2016
FC 97 at para 9; Canada (Citizenship and Immigration) v Bayani, 2015 FC
670 [Bayani] at para 17; Huang v Canada (Citizenship and Immigration),
2013 FC 576 [Huang] at para 26).
[11]
Based on this standard of review, the Court must
ensure that a citizenship judge’s decision meets the test of clarity, precision
and intelligibility and that it is supported by acceptable evidence that can be
justified in fact and in law. The standard of reasonableness not only commands
that the decision at issue falls within a range of possible, acceptable
outcomes defensible in respect of the facts and law, but it also requires the
existence of justification, transparency and intelligibility within the
decision-making process (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
at para 47).
[12]
It is also trite law that the person applying
for citizenship bears the onus of proving that the conditions set out in the
Act with regard to residence have been met (El Falah v Canada (Citizenship
and Immigration), 2009 FC 736 [El Falah] at para 21). A citizenship
judge cannot solely rely on the applicant’s claims in that regard, especially
in the face of contradictory evidence (El Falah at para 21). Clear and
compelling evidence is required to support an application (Atwani v Canada
(Citizenship and Immigration), 2011 FC 1354 at para 12). This is so because
Canadian citizenship is a privilege that should not be granted lightly (Canada
(Citizenship and Immigration) v Pereira, 2014 FC 574 at para 21). This
requirement applies irrespective of which residency test is applied by the citizenship
judge, whether it is quantitative or qualitative (Abbas v Canada
(Citizenship and Immigration), 2011 FC 145 at para 8).
III.
Analysis
[13]
Mr. Lally submits the Judge misapprehended the
evidence and misapplied the Pourghasemi test. He claims that the Judge
did not properly understand the nature of his work as a long-haul driver. Mr.
Lally contends that it was a reviewable error for the Judge to conclude that he
did not need to be in Canada to earn a living when the evidence demonstrates
that he was a transporter of goods across Canada on behalf of an Ontario-based
company, with occasional trips to the United States. Mr. Lally claims that this
characterization of his work is supported by the stamps in his passport and
travel logs.
[14]
Mr. Lally further pleads that, if he had been a
frequent visitor to the United States, his passport would have been stamped
more than four times. The absence of return stamps is also to be expected,
because the Canadian border authorities rarely stamp the passport of returning
citizens and permanent residents. Mr. Lally also argues that the Judge had the
obligation to consult the Integrated Customs Enforcement System [ICES] report
to confirm Mr. Lally’s presence in Canada but failed to do so. Moreover, his
travel logs show that he never spent more than twenty-four hours in the United
States, consistent with the nature of his work. Mr. Lally finally states that
the Judge erred in failing to take into account his obvious explanation that he
kept two apartments at the same time, again due to the nature of his work.
[15]
I disagree with Mr. Lally’s position and arguments.
[16]
I instead find that the Judge did not err in
concluding that Mr. Lally failed to discharge his burden of demonstrating that
he met the residency requirements set out in the Act. The evidence he presented
was incomplete, contradictory and not credible. The Judge had to rely on that evidence
to determine if Mr. Lally had met his burden of proof, and it was within her
purview to assess and weigh the evidence as she did. The Judge’s decision
clearly falls within the range of possible, acceptable outcomes.
[17]
The Act does not define the term “residence.” For quite some time, there has therefore
been an ongoing debate within this Court as to what the term and paragraph
5(1)(c) of the Act exactly mean. Competing jurisprudential schools have emerged
from that debate with the result that three different tests are available to
citizenship judges in assessing the residency requirement in any given case (Canada
(Citizenship and Immigration) v Patmore, 2015 FC 699 at para 13; Huang
at paras 17-18; Sinanan v Canada (Minister of Citizenship and Immigration),
2011 FC 1347 at paras 6-8).
[18]
The first test involves a strict counting of
days of physical presence in Canada, which must total at least 1,095 days in
the four years preceding the application. This test is often referred to as the
quantitative test or the Pourghasemi test. The second test assesses the
quality of the applicant’s attachment to Canada and recognizes that a person
can be resident in Canada, even while temporarily absent, if that person’s mode
of living is centralized in Canada and reflects an intention to establish a
permanent home in the country. This less stringent test is generally known as
the Papadogiorgakis test (Re Papadogiorgakis, [1978] 2 FC 208).
Finally, the third test builds on the second one by defining residence as the
place where one has centralized his or her mode of living. It is described in
the jurisprudence as the Koo test (Re Koo, [1993] 1 FC 286). The
last two tests are often referred to as the qualitative tests (Huang at
para 17).
[19]
The dominant view in this Court’s jurisprudence
is that citizenship judges are entitled to choose which test they desire to use
among these three tests and that they cannot be faulted for choosing one over
the other (Canada (Citizenship and Immigration) v Lin, 2016 FC 58 at
para 12; Bayani at para 24; Pourzand v Canada (Minister of
Citizenship and Immigration), 2008 FC 395 at para 16; Xu v Canada
(Minister of Citizenship and Immigration), 2005 FC 700 at para 16).
The Court should therefore not intervene unless the chosen test was applied in
an unreasonable manner (Canada (Minister of Citizenship and Immigration) v
Demurova, 2015 FC 872 at para 20). While they can choose between the
three tests, citizenship judges must however at least indicate which residency
test was used and why the test was met or not. Failure to do so is a reviewable
error (Bayani at para 30; Canada (Citizenship and Immigration v
Jeizan, 2010 FC 323 [Jeizan] at para 18). A citizenship
judge’s decision will be sufficiently motivated when the reasons are clear,
accurate and intelligible, and when it reflects an understanding of the points
raised by the evidence and indicates why the decision was rendered (Lake v
Canada (Minister of Justice), 2008 SCC 23 at para 46; VIA Rail Canada
Inc v Canada (National Transportation Agency), [2001] 2 FC 25 (FCA) at
para 22; Jeizan at para 17).
[20]
In this case, the Judge clearly chose the
quantitative test set out in Pourghasemi, involving a strict counting of
Mr. Lally’s days of presence in Canada. I do not agree with Mr. Lally that the
Judge failed to properly count his days of presence and absence in Canada. This
case does not involve a fact pattern similar to Hussein v Canada (Minister
of Citizenship and Immigration), 2015 FC 88 [Hussein] at para 16, relied
on by Mr. Lally in his submissions. In Hussein, Mr. Justice Leblanc
found that the citizenship judge had accepted, as a starting point, the number
of days of physical presence claimed by the applicant, which exceeded the 1,095-day
threshold. This is not the situation here. In this case, the Judge attempted to
count the number of days of presence and absence claimed by Mr. Lally but could
not figure it out. She intelligibly explained, in my view, how the various
inconsistencies and incompleteness in Mr. Lally’s evidence made it impossible
for her to compute the days of physical presence of Mr. Lally in Canada, and
why Mr. Lally did not meet the quantitative test. Her decision had the required
attributes of justification, transparency and intelligibility.
[21]
I am satisfied that the reasons for the decision
indicate which residency test was used by the Judge and why that test was not
met (Hussein at para 16). In her decision, the Judge states that Mr.
Lally self-reported 1,119 days of presence with no absences or shortfall, but
then notes that his residence questionnaire instead referred to four absences
while Mr. Lally’s declared days of presence shrunk to a mere 778 days in his
initial application. I also observe that the record contains no evidence whatsoever
of Mr. Lally’s presence in Canada for the first part of the period of
reference.
[22]
An actual presence in Canada is required to meet
the residency requirement, and it was Mr. Lally’s onus to show that (El
Falah at para 21). If the actual presence is not demonstrated, Canadian
citizenship cannot be granted. Contrary to what was argued by Mr. Lally, the
fact that it was impossible for the Judge to determine the days of his actual
presence in Canada was precisely the factual finding which justified and
supported the Judge’s conclusion that, on a balance of probabilities, Mr. Lally
had not met the residency requirements under the Act.
[23]
As stated in Pourghasemi,
the underlying objective of the citizenship provisions of the Act is to insure
that everyone who is granted Canadian citizenship has become “Canadianized.” In that decision, Mr. Justice Muldoon illustrated this goal in colorful
language, referring to instances of “rubbing elbows” with Canadians in “shopping malls, corner stores, libraries,
concert halls, auto repair shops, pubs, cabarets, elevators, churches,
synagogues, mosques and temples” (Pourghasemi
at para 3). In essence, it reflects the need for an
applicant to establish and prove a concrete and effective presence in Canada.
This is what, in the Judge’s assessment, Mr. Lally failed to do.
[24]
I am not persuaded that the Judge misapprehended
any portion of the evidence. Weighing and assessing the evidence is the
citizenship judge’s purview, and the Court owes significant deference to such
findings. The record supports the Judge’s finding that Mr. Lally provided vague
testimony with regards to his addresses, and that evidence as to his actual
presence in Canada was sparse. I agree with the Minister that the documents
provided by Mr. Lally were clearly insufficient to reasonably support his claims
to have been physically present in Canada during the relevant period of
reference. There is practically no trace of Mr. Lally in Canada, aside from the
few periods covered by the limited pieces of evidence he provided.
[25]
In addition, I underline that credibility
findings of citizenship judges deserve much deference because they are better
situated to “make the factual determination as to
whether the threshold question of the existence of ‘a residence’ has been
established” (Martinez-Caro v Canada (Minister of Citizenship and
Immigration), 2011 FC 640 at para 46).
[26]
With the scant evidence of presence provided by
Mr. Lally, the Judge could not blindly rely on the submissions made by Mr.
Lally as to his number of days of absence from or presence in Canada. I
acknowledge that there may be a point beyond which the exercise of discretion
on the part of the citizenship judge could be held to be unreasonable. This
point was however not reached in the present case as Mr. Lally’s weak and unconceivable
explanation on his absences was insufficient to support the granting of
citizenship.
[27]
Regarding the sufficiency of the Judge’s
reasons, I stated in Canada (Minister of Citizenship and Immigration) v
Abdulghafoor, 2015 FC 1020 at paras 30-36 that the law
relating to the sufficiency of reasons in administrative decision‑making
has evolved substantially since Dunsmuir, both with respect to the
degree of scrutiny to which fact‑based decisions (such as the decision at
issue in this case) should be subjected, and in relation to the sufficiency of
reasons as a stand‑alone ground for judicial review. A decision-maker is not required to refer to each and every detail supporting his or her
conclusion. It is sufficient if the reasons permit the Court to understand why
the decision was made and to determine whether the conclusion falls within the
range of possible, acceptable outcomes. Reasonableness, not perfection, is the standard.
This Court should defer to a citizenship judge’s weighing
of the evidence and credibility determinations, as long as the Court is able to
understand why the decision was made. This is precisely the case here.
IV.
Conclusion
[28]
For the reasons set forth above, Mr. Lally’s
application for judicial review is dismissed. The Judge’s refusal of Mr.
Lally’s citizenship application represented a
reasonable outcome based on the law and the evidence. On
a standard of reasonableness, it suffices if the decision subject to judicial
review falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law, and is justified, transparent and
intelligible. The Judge
addressed all concerns that were raised by the citizenship officer in her
decision and she provided adequate reasons.
[29]
Neither party has proposed a question of general
importance to certify. I agree there is none.
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