Docket: T-248-16
Citation:
2016 FC 1038
Toronto, Ontario, September 13, 2016
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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CARMEN EZZAT
GHALY EBIED
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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.
Nature of the Matter
[1]
This is an application for judicial review
pursuant to subsection 14(3) of the Citizenship Act, RSC 1985, c C-29
[the Act], of a decision of Citizenship Judge Marie Senécal-Tremblay (the
Judge), dated November 20, 2015, denying the applicant’s application for
Canadian citizenship under paragraph 5(1)(c) of the Act.
II.
Facts
[2]
The applicant, Carmen Ezzat Ghaly Ebied, was
born in Cairo, Egypt, in 1983. Sponsored by her husband, she arrived in Canada
on June 21, 2008, and became a Permanent Resident of Canada on December 23,
2008. She filed her original application for citizenship on February 13, 2012.
As this application was incomplete (apparently because it was missing a
Residence Calculator form), it was returned to the applicant. She completed the
application by resubmitting it with the missing form, but without re-signing or
re-dating it. The completed application was received on March 5, 2012.
[3]
In her application for citizenship, the
applicant declared 12 trips during the relevant period (running from June 21,
2008 to February 13, 2012), representing 151 days of absence from Canada. Her
Residence Calculator form indicated a physical presence in Canada for 1089 days
during the relevant period, representing a shortfall of six days from the
required 1095 days.
[4]
The applicant filled out two Residence
Questionnaires (sent on July 29, 2013, and on March 3, 2015), but neither
addressed her shortfall with respect to days spent in Canada during the
relevant period. This prompted an interview with a Citizenship Officer. Further
to her interview, the applicant was referred to a hearing before the Judge.
III.
Impugned Decision
[5]
The applicant’s citizenship hearing took place
on September 21, 2015. The Judge identified the relevant period as running
between June 21, 2008 and February 13, 2012, and examined the evidence of the
applicant’s physical presence in Canada during that time, pursuant to s 5(1)(c)
of the Act.
[6]
The Judge first constructed and reviewed a chart
listing minor inconsistencies between the applicant’s absences as indicated in
her application, her questionnaire, her passport stamps, and her Integrated
Customs Enforcement System report. The applicant submitted additional evidence
after the hearing to clarify these inconsistencies, which the Judge accepted as
factual. After reviewing all of the available evidence, the Judge concluded
that the applicant had been absent from Canada for 152 days during the
relevant period, indicating a shortfall of seven days. The applicant did
not address this shortfall before the Judge at her hearing.
[7]
The Judge subsequently considered the evidence
available with respect to the applicant’s employment and studies in Canada. In
relation to the applicant’s studies, the Judge noted that the applicant had
taken French courses when she arrived in Canada, as demonstrated by a
certificate confirming the completion of 100 hours of lessons between August
and September 2008. Other evidence with respect to further studies, namely a
form seeking admission into another French course, was found to be of low
probative value.
[8]
In relation to the applicant’s employment
history, the Judge noted that the applicant stated in her questionnaire that
she worked at her husband’s weight loss clinic from April 26, 2009 to September
14, 2011. However, since the applicant’s son was born on May 30, 2009, the
Judge noted that the applicant had been absent on maternity leave for the
majority of that period. The Judge also noted the applicant’s employment at Aer
Rienta Duty Free at Pierre Elliott Trudeau International Airport. In her
questionnaire, the applicant stated that she had worked at the airport for 16
months, between March 2012 and July 2013, but her record of employment
indicated that she had only worked there for five months, again as a result of
taking maternity leave. The Judge further noted that the applicant had not
worked since that date.
[9]
In relation to the applicant’s income, the Judge
reviewed the Notices of Assessment submitted by the applicant from the Canada
Revenue Agency, as well as the information provided with regards to the
applicant’s husband’s income, who she stated supported her. The Judge noted
that there was an inconsistency between the applicant’s modest declared family
income and her lifestyle, which included the purchase of a home and extensive
travel. The Judge examined the applicant’s submitted bank statements in order
to resolve this inconsistency, finding that the applicant appeared to have
sources of significant income other than those she had reported.
[10]
The Judge finally considered evidence with
respect to the applicant’s social ties to Canada, reviewing documents submitted
by the applicant including some that detailed events falling outside the
relevant time period. In particular, the Judge noted that the applicant had
submitted proof of birth and vaccination booklets for her two sons which
provided indirect evidence of the applicant’s presence in Canada at the time of
their births. The Judge also noted the applicant’s own medical records which
document over twenty medical visits in Ontario.
[11]
Having reviewed the available evidence, the
Judge exercised her discretion to apply the test established by Justice Muldoon
in Re Pourghasemi (1993), 62 FTR 122, [1993] FCJ No 232 (QL) (TD), known
as the strict physical presence test. As the Judge found that the applicant had
not been in Canada for the required number of days, she refused to approve the
applicant’s application for Canadian citizenship.
IV.
Issues
[12]
The issues are as follows:
- Did the Judge
err with regard to the period of reference for the applicant’s physical
presence in Canada?
- Was the decision
of the Judge unintelligible or made in a perverse and capricious manner?
- Did the Judge
(or the respondent) err in failing to consider s 5(4) of the Act?
V.
Standard of Review
[13]
The parties correctly agree that for issues 1
and 2 above, the appropriate standard of review is reasonableness (Afkari v
Canada (Citizenship and Immigration), 2016 FC 421, at para 12). The
applicant submits that the appropriate standard of review for issue 3 is correctness;
while the exercise of discretion conveyed at s 5(4) of the Act is normally
reviewed on a reasonableness standard (Zahra v Canada (Citizenship and
Immigration), 2009 FC 444, at para 9). The applicant submits that a
question of procedural fairness has been raised since the Judge failed even to
consider any such exercise of discretion. The appropriate standard of review on
a question of procedural fairness is correctness (Mansur v Canada
(Citizenship and Immigration), 2014 FC 1035, at para 21).
VI.
Analysis
A.
Period of reference
[14]
The applicant does not dispute the Judge’s
counting of days. Rather, she disputes the end date of the relevant period
(also referred to as the reference period). She argues that March 5, 2012, the
date she resubmitted her application with the Residence Calculator form, should
have been used as the end date of the relevant period.
[15]
Because the respondent does not dispute that an
error on this issue by the Judge could have been determinative, I accept that
this issue could be determinative.
[16]
The applicant argues that a citizenship
application should be considered to be dated on the date the application is
accepted as complete. Since the application was not complete when it was
originally filed, it should be considered to be dated on March 5, 2012,
regardless of the fact that it bore a signature and date from February 13,
2012.
[17]
The respondent notes that the February 13, 2012
end date for the relevant period is based not just on the date given on the
application submitted by the applicant, but also the Residence Calculator form
she provided on March 5, 2012. In addition to these indications by the
applicant herself, the respondent cites the Guidelines from Citizenship and
Immigration Canada (the CIC Guidelines) indicating that an application is
considered to be “locked-in” on the date that it
was originally signed and dated, not the date it is determined to be complete
and accepted for processing.
[18]
The respondent also points out that it is not
inconceivable that an applicant may wish to proceed with an application for
citizenship despite a shortfall in the number of days of physical presence. An
applicant might hope that a citizenship judge would apply a legal test that
considers factors other than physical presence in Canada (though this would be
up to the discretion of the citizenship judge).
[19]
Based on the arguments of the parties, I am not
persuaded that the Judge acted unreasonably in determining that the date of the
application (the lock-in date), and hence the end date of the reference period,
was the original filing date and not the date the completed application was
resubmitted. The Judge’s analysis on this point is clear and based on the CIC
Guidelines as well as the applicant’s own submissions. I am not persuaded
otherwise by the jurisprudence cited by the applicant on this issue.
[20]
The applicant also proposed that, in the event
that I do not agree with her on the determination of the lock-in date for her
citizenship application, I certify a serious question of general importance to
permit her to appeal my decision. The respondent opposes certification.
[21]
Though I am satisfied that this issue could be
determinative, I am not persuaded to certify a question. In my view, this issue
is very fact-specific (the dispute over the date resulting from the applicant’s
error) and does not constitute a serious question of general importance.
B.
Whether the decision was unintelligible or made
in a perverse and capricious manner
[22]
The applicant raises a number of points under
this issue.
[23]
The applicant notes some confusion by the Judge
surrounding the two Residence Questionnaires that were completed by the
applicant and sent on July 29, 2013, and on March 3, 2015. Specifically, it was
the first Residence Questionnaire, not the second, which stated in the
Declaration section “31 August 2013, signed at Cairo,
Egypt”. Also, it was the second Residence Questionnaire, not the first,
whose declaration was signed in Montreal on March 28, and further, it was
signed in 2015, not 2008. The applicant argues that this demonstrates a lack of
care in the Judge’s decision.
[24]
The reason I am not persuaded to give much
weight to this argument is that the Judge’s care in drafting her decision was
not determinative in this case. There is no dispute that, if the reference
period was not in error (and I have found it was not), then the applicant did
not have enough days of physical presence in Canada during that period to
satisfy the requirements of the Act under the test that the Judge was entitled
to apply. The Judge’s care in discussing the two Residence Questionnaires does
not change that.
[25]
The same is true of the applicant’s arguments
that the Judge (i) improperly considered events that occurred outside the
reference period; (ii) erroneously summarized the applicant’s work history;
(iii) improperly considered an inconsistency between the applicant’s declared
family income and her lifestyle; and (iv) wrongly determined that giving birth
in Canada represents merely indirect evidence of physical presence in
Canada. None of these can alter the fact that the applicant simply failed to
establish the required number of days of physical presence in Canada.
[26]
The fact that the applicant was only six or
seven days short of the required number of days also does not alter the fact
that the requirements of the Act were not met. I note also that this shortfall
was repeatedly drawn to the applicant’s attention before the Judge made her
decision.
[27]
In my view, the Judge’s decision was neither
unintelligible nor made in a perverse or capricious manner.
C.
Subsection 5(4) of the Act
[28]
The applicant’s argument on this issue seems to
have evolved. In her memorandum of argument, the applicant criticized the Judge
for failing to consider whether discretion should be exercised under s 5(4) of
the Act to grant the applicant citizenship despite her failing to meet the
normal requirements therefor. In her supplementary memorandum of argument, the
applicant added that, due to recent amendments to the Act, it may be the
respondent (the Minister), not the Judge, who was responsible for considering
the exercise of discretion under s 5(4) of the Act. Finally, in her counsel’s
oral representations, she answered her query from her supplementary memorandum
of argument (taking the position that it was indeed the respondent’s
responsibility to have considered the exercise of discretion under s 5(4) of
the Act) and asserted that there would be a problem with the decision to refuse
the applicant citizenship even if the Judge had considered the exercise
of discretion.
[29]
As indicated above, the applicant asserts that
this issue should be reviewed on a standard of correctness because it concerns
a question of procedural fairness, namely the failure even to consider the
exercise of discretion under s 5(4) of the Act. Accordingly, I need address this
issue only if I am satisfied that there was indeed a failure to consider the
exercise of discretion.
[30]
This brings me to the Notice to the Minister of
the Decision of the Citizenship Judge which was signed by the Judge on November
20, 2015. In that notice, the Judge clearly indicated that she was not
referring the matter for consideration under s 5(4) of the Act. Putting aside
for the moment the question of whether the discretion was the Judge’s to
exercise or the respondent’s, the Judge clearly considered s 5(4). It is not
surprising that the Judge’s decision is silent on this issue since the
applicant made no submission on the issue that required comment: see Huynh v
Canada (Citizenship and Immigration), 2003 FC 1431 at para 5; Al-Kaisi v
Canada (Citizenship and Immigration), 2014 FC 724 at para 27.
[31]
The applicant argues that recent amendments to
the Act leave certain backlog citizenship applications, like that of the
applicant here, in a no-man’s land in which neither the citizenship judge nor
the respondent is responsible for considering the exercise of discretion under
s 5(4) of the Act. The applicant argues that this creates a nonsense that can
only be resolved if the respondent is responsible for considering the exercise
of discretion. The applicant also argues that the respondent did not exercise
that discretion.
[32]
I do not agree with the applicant’s position on
this issue for a couple of reasons.
[33]
Firstly, I agree with the respondent that it was
never in a citizenship judge’s power to make the exercise of discretion.
Rather, the citizenship judge was required to consider whether or not to
recommend an exercise of discretion by the respondent or by the Governor in
Council. The obligation on a citizenship judge to make this
consideration was removed, but nothing prevents a citizenship judge now from
making a recommendation anyway. I disagree with the applicant that a lacuna
exists in the law.
[34]
Secondly, I am not satisfied that there has been
any failure to exercise discretion here. As indicated, the Judge in her Notice
to the Minister communicated her refusal to refer the applicant’s application
for consideration under s 5(4) of the Act. In light of this, as well as the
absence of any submissions by the applicant under s 5(4) of the Act, it is not
surprising that the Minister was silent on this issue. I see no reason that the
jurisprudence cited in paragraph 30 above excusing a citizenship judge’s
silence would not apply equally to the respondent’s silence.
[35]
The applicant proposes that I certify a question
as to whether the failure of the respondent to consider s 5(4) of the Citizenship
Act before denying a citizenship application (in the context of backlog
applications like the applicant’s) is equivalent to a fettering of discretion.
In my view, it would be inappropriate to certify such a question because I have
concluded that there was no failure to consider s 5(4).
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