Docket: T-95-16
Citation:
2016 FC 946
Ottawa, Ontario, August 18, 2016
PRESENT: The
Honourable Madam Justice Kane
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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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PATRICK IMHOUDU
ILUEBBEY
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant, the Minister of Citizenship and
Immigration, appeals the decision of a Citizenship Judge dated December 8, 2015
which found that, on a balance of probabilities, the respondent, Mr. Iluebbey,
met the residence requirement under paragraph 5(1)(c) of the Citizenship Act,
RSC, 1985, c C-29, as amended [the Act].
[2]
The Citizenship Judge applied the qualitative
test established in Re Papadogiorgakis, [1978] 2 FC 208 (FCTD) [Papadogiorgakis].
The Citizenship Judge considered the concerns noted by the Citizenship Officer,
questioned Mr. Iluebbey about those concerns and found his explanations to be
credible. Mr. Iluebbey’s testimony, coupled with the additional documents he
provided, were found by the Citizenship Judge to be sufficient to establish on
a balance of probabilities that Mr. Iluebbey had established and maintained a
residence in Canada; in other words, that he had “centralized
his mode of living in Canada” and met the test for residence.
[3]
For the reasons that follow, the Citizenship
Judge’s reasons, together with the record, permit me to find that the decision
is reasonable.
I.
Background
[4]
Mr. Iluebbey, a citizen of Nigeria, arrived in
Canada on August 29, 2006 and became a permanent resident on that date.
However, he did not remain in Canada at that time and spent much of his time
outside of Canada before the commencement of the relevant period to assess
residency for the purpose of citizenship. He applied for citizenship on January
14, 2012. Therefore, the relevant period for the purposes of determining
whether he meets the residence requirement under paragraph 5(1)(c) of the Act
is January 14, 2008 to January 14, 2012.
[5]
On his citizenship application, Mr. Iluebbey
declared that he had been physically present in Canada for 1120 days and absent
for 340 days in the relevant period. In his Residency Questionnaire [RQ], he
declared that he was absent for 424 days. Ultimately, it was determined that he
had a shortfall of 59 days of physical presence in the relevant period.
[6]
A Citizenship Officer reviewed the application
and noted several concerns:
•
Mr. Iluebbey had ten Canadian re-entry stamps
compared to eleven declared absences.
•
No residence was provided in Canada for the
periods between January 2008 to December 2008 and December 2010 to October 2011
in his citizenship application.
•
There were discrepancies in the listed addresses
between his citizenship application and RQ.
•
There was a discrepancy arising from the fact
that he allegedly quit his job in Nigeria in 2008, yet listed the reason for
his visits to Nigeria from 2009 to 2011 as for “business”.
•
Mr. Iluebbey did not list any income from his
employer or business, Afromedia, in 2008 and 2009.
•
Mr. Iluebbey did not provide financial evidence
relating to his personal life and employment.
•
There were few active indicators of residency.
[7]
The Citizenship Officer referred Mr. Iluebbey to
a hearing before the Citizenship Judge.
II.
The Decision under Review
[8]
The Citizenship Judge found that, although Mr.
Iluebbey had a shortfall of 59 days of physical presence in the relevant
period, he met the residence requirement under paragraph 5(1)(c) of the
Act. At the conclusion of the reasons, the Citizenship Judge stated that he had
applied the “analytical” approach established in
Papadogiorgakis, cited a relevant passage from that case, and concluded
that Mr. Iluebbey “has ‘centralized his mode of living
with its accessories’ in Canada and provided sufficient documentation to prove
that he and his family have established residence in Canada.”
[9]
The Citizenship Judge noted the concerns
highlighted by the Citizenship Officer and the explanations offered by Mr.
Iluebbey and found that Mr. Iluebbey had addressed most of the concerns in a
credible manner. The Citizenship Judge also requested additional documents to
address some of the noted concerns.
[10]
With respect to the evidence of eleven declared
absences, but only ten re-entry passport stamps into Canada, the Citizenship
Judge relied on the exit stamp from Nigeria on December 18, 2010 and a
purchase in Canada noted on Mr. Iluebbey’s joint bank account statement in late
December 2010 to establish that he had returned to Canada. The Citizenship Judge
also noted that Mr. Iluebbey’s absences formed a pattern: he left Canada in
April, September and December of each year.
[11]
With respect to the concern that Mr. Iluebbey
had no declared address in Canada in 2008 or for the first ten months of 2011
and the inconsistencies in the residence information between his citizenship
application and RQ, the Citizenship Judge noted that Mr. Iluebbey was often
travelling to Nigeria to find content for his television show, but he “always had the Toronto address declared in the application.”
[12]
With respect to the lack of income from
Afromedia and that the only income reported on his tax returns for 2008 and 2009
was from the Universal Child Care Benefit, the Citizenship Judge noted Mr.
Iluebbey’s explanation that there was no profit from Afromedia in its early
years. The Citizenship Judge added that the material sent after the hearing
exhibited a lot of activity for Afromedia, which reflects the necessary legal
requirements of the Canadian broadcasting environment. The Citizenship Judge
found, based on his own experience as a broadcaster, that this “requires extensive physical presence and real commitment to
Canadian ethno-cultural life.”
[13]
The Citizenship Judge referred to the children’s
school records and First Communion and Baptismal certificates sent by Mr.
Iluebbey after the hearing, noting that some fell outside the relevant period,
but found that these “confirm that the applicant has
established residence in this country.”
[14]
The Citizenship Judge found that the documents
related to Mr. Iluebbey’s residence in Canada were not extensive, but “are enough to confirm that the applicant is still living in
the same place he reported at the time he filed the application.”
[15]
The Citizenship Judge added that the application
was “not up to the standard we are used to,” but
found that there were sufficient elements to convince him that Mr. Iluebbey had
established residence in Canada.
III.
The Issues
[16]
The Minister submits that the decision is
unreasonable because the Citizenship Judge erred in applying the test in Papadogiorgakis,
including by failing to first determine whether Mr. Iluebbey had
established a residence in Canada and by making findings regarding his
residence in Canada which are inconsistent with the evidence on the record. The
Minister also argues that the Citizenship Judge’s reasons are inadequate,
making it impossible to determine if the decision is reasonable.
IV.
The Standard of Review
[17]
The jurisprudence has established that the
administrative law principles governing the standard of review apply to appeals
from decisions of a citizenship judge (Canada (Minister of Citizenship and
Immigration) v Rahman, 2013 FC 1274 at paras 11-14, [2013] FCJ No 1394
(QL); Canada (Minister of Citizenship and Immigration) v Lee, 2013 FC
270 at paras 15-17, [2013] FCJ No 311 (QL)).
[18]
The standard of reasonableness, therefore,
applies to the review of the Citizenship Judge’s decision, which involves
the application of the test chosen by the Judge to the facts. The role of the
Court is to determine whether the decision “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47, [2008] 1 S.C.R. 190 [Dunsmuir]).
[19]
It is well-established that boards and tribunals
and other first decision makers who hear the testimony of witnesses are best
placed to assess their credibility (Aguebor v Canada (Minister of Employment
and Immigration), [1993] FCJ No 732 (QL) at para 4, 160 NR 315 (FCA)). The
decision maker’s credibility findings should be given significant deference (Lin
v Canada (Minister of Citizenship and Immigration), 2008 FC 1052 at para
13, [2008] FCJ No 1329 (QL); Fatih v Canada (Minister of Citizenship and
Immigration), 2012 FC 857 at para 65, 415 FTR 82; Lubana v Canada
(Minister of Citizenship and Immigration), 2003 FCT 116 at para 7, 228 FTR
43). The same principles apply to the credibility findings of citizenship
judges (Martinez-Caro v Canada (Minister of Citizenship and Immigration),
2011 FC 640 at para 46, [2011] FCJ No 881 (QL).
[20]
The inadequacy of the reasons is not an
independent ground to allow an application for judicial review. In Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses], the Supreme Court
of Canada elaborated on the requirements of Dunsmuir, noting at para 14
that the reasons are to “be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes.” In addition, where necessary, courts may
look to the record “for the purpose of assessing the
reasonableness of the outcome” (at para 15). The key principle is summed
up at para 16 that “if the reasons allow the reviewing
court to understand why the tribunal made its decision and permit it to
determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.”
V.
The Applicant’s Submissions
[21]
The Minister emphasizes that, regardless of the
residence test applied, applicants for citizenship must demonstrate that they
had a residence of their own in Canada prior to the relevant period and that
they have maintained an established residence in Canada throughout the relevant
time period (Canada (Minister of Citizenship and Immigration) v Italia,
[1999] FCJ No 876 (QL) at para 14, 89 ACWS (3d) 22 (FCTD) [Italia]).
[22]
The Minister acknowledges that Papadogiorgakis
provides that days when a citizenship applicant is absent from Canada during
the relevant period can count towards the residence requirement where such
absences are temporary and the citizenship applicant demonstrates an intention
to establish a permanent home in Canada.
[23]
The Minister argues that the Citizenship Judge
erred in applying the Papadogiorgakis test, which is dependent on
residency being first established. There was no evidence that Mr. Iluebbey
had established a residence in Canada at the beginning of the relevant period.
The Minister argues that the Citizenship Judge erred by either not
addressing this or erred by implicitly finding that this requirement was met.
[24]
Papadogiorgakis
also requires a citizenship applicant to have “centralized
his mode of living in Canada.” The “evidence of
the qualitative attachment or centralized mode of living must be fairly strong”
(Canada (Minister of Citizenship and Immigration) v Gentile, 2015 FC
1029 at para 52, [2015] FCJ No 1030 (QL)). The Minister argues that there is no
evidence that can reasonably support this, let alone strong evidence.
[25]
The Minister submits that the Citizenship Judge
did not address the inadequacies of the evidence before him including Mr.
Iluebbey’s absences from Canada, his lack of employment income in 2008 and
2009, his employment in Nigeria for part of 2008 and the discrepancies in the
residences listed.
[26]
The Minister also argues that the Citizenship
Judge’s reasons are inadequate to the extent that they do not permit the Court
to determine if the decision is reasonable on the record. The reasons do not
reflect what documents the Citizenship Judge relied on to satisfy himself that
the qualitative test for residency was met. Rather, the record highlights
information which does not support the conclusion that the residency test was
met.
VI.
The Respondent’s Submissions
[27]
The respondent, Mr. Iluebbey, notes that the
Citizenship Judge heard his testimony at the hearing and accepted his
explanations as credible and that the findings of the Citizenship Judge should
be given deference. In addition, he provided additional documents with a cover
letter to explain the content of the documents to address the other concerns
noted at the hearing. These were accepted by the Citizenship Judge, along with
the documents previously provided, as sufficient evidence to find that Mr.
Iluebbey had met the qualitative test for residency.
[28]
Mr. Iluebbey acknowledges that he was outside
Canada at the beginning of the relevant period and had extended absences in
2008. He also acknowledges that there were some discrepancies in the residences
he listed in his RQ and citizenship application and the corresponding dates,
but explained in the supplementary documents that he had two successive rental
apartments where his family resided since 2006 and that he then purchased a
home in 2010.
[29]
He notes that the Citizenship Judge accepted his
explanation that the nature of his work in Canada necessitated trips to Africa
to seek out content for Afromedia. There is no inconsistency in describing his
trips as for business, despite his lack of employment income from Afromedia in
2008 and 2009.
[30]
Mr. Iluebbey disputes that the Citizenship Judge
ignored or discounted the weakness and contradictions in the evidence.
[31]
Mr. Iluebbey also submits that the evidence
shows that he was involved in the operations of the Afromedia Company; there
was evidence of his presence in meetings and in discussions of regulatory
issues, expansion of the scope of the business and recruitment of performance
artists. Other documentary evidence, including the CRTC licence and the
incorporation documents describe Afromedia’s mandate which is consistent with Mr.
Iluebbey’s role in Afromedia and his need to travel to Africa frequently.
[32]
With respect to the passive indicia of
residency, Mr. Iluebbey argues that the reasons reflect that the Citizenship
Judge’s initial concerns were addressed after reviewing the evidence provided,
including his letter which explained the lack of rental agreements for the
apartments, the school records of his children, a Baptismal certificate and a First
Communion certificate, acknowledging that some fell outside the relevant
period.
VII.
The Citizenship Judge did not err in applying
the Papadogiorgakis test
[33]
The jurisprudence has established that a citizenship
judge may apply one of three tests to determine whether the residency
requirements of the Act have been met. The citizenship judge cannot blend the
tests (Canada (Minister of Citizenship and Immigration) v Purvis, 2015
FC 368, [2015] FCJ No 360 (QL), at para 28) and must clearly indicate the test
that has been applied (Canada (Minister of Citizenship and Immigration) v
Bani- Ahmad, 2014 FC 898, at paras 18-19). The test chosen must be
correctly applied (Boland v Canada (Minister of Citizenship and Immigration),
2015 FC 376, [2015] FCJ No 340 (QL), at paras 17 and 19).
[34]
The Citizenship Judge stated that he applied the
“analytical approach” as stated in Papadogiorgakis.
The issue is whether he conducted the necessary analysis in accordance with
that test and reached a reasonable conclusion based on the evidence on the
record.
[35]
The Citizenship Judge set out the following
passage from Papadogiorgakis:
A person with an established home of his own
in which he lives does not cease to be resident there when he leaves it for a
temporary purpose whether on business or vacation or even to pursue a course of
study. The fact of his family remaining there while he is away may lend support
for the conclusion that he has not ceased to reside there. The conclusion may
be reached, as well, even though the absence may be more or less lengthy. It is
also enhanced if he returns there frequently when the opportunity to do so
arises.
It is, as Rand J. appears to me to be saying
in the passage I have read, “chiefly a matter of the degree to which a person
in mind and fact settles into or maintains or centralizes his ordinary mode of
living with its accessories in social relations, interests and conveniences at
or in the place in question”.
[36]
That test is subject to the two-stage approach
of all residency tests; that residency must be established at the outset of the
period and then maintained (Sud v Canada (Minister of Citizenship and
Immigration) (1999), 180 FTR 3, 92 ACWS (3d) 379).
[37]
The Minister referred to Italia for the
proposition that residence must be established before any absence from Canada:
[15] Where an applicant has failed to
first establish a Canadian residence prior to any absence from Canada during
the four years preceding their application, the requirements of the Citizenship
Act have not been met.
[38]
Similarly, as noted by Justice O’Reilly in Canada
(Minister of Citizenship and Immigration) v Nandre, 2003 FCT 650, [2003]
FCJ No 841 (QL):
[24] As mentioned, the Citizenship
Act requires that an applicant for citizenship show a period of residence
in Canada amounting to a total of at least three years over the course of the
previous four. In order for applicants to satisfy the residence requirement,
they must first show that they have established a residence in Canada and then
demonstrate that they maintained residency for the required duration. Numerous
cases of this Court make this clear: see, for example, Chan v. Canada
(Minister of Citizenship and Immigration), 2002 FCT 270; [2002] F.C.J. No.
376 (QL) (T.D.); Canada (Minister of Citizenship and Immigration) v.
Xu, 2002 FCT 111; [2002] F.C.J. No. 1493 (QL) (T.D.).
[39]
A clear statement of the two-stage inquiry with
respect to the residence requirement is found in Canada (Minister of
Citizenship and Immigration) v Roberts, 2009 FC 927, [2009] FCJ No 1141
(QL):
[14] As mentioned, a two-stage inquiry
exists with respect to the residency requirement stipulated in paragraph
5(1)(c) of the Act. The case law indicates that applicants for citizenship must
demonstrate that first, they have established a residence in Canada: see Canada
(Minister of Citizenship and Immigration) v. Italia, 89 A.C.W.S. (3d) 22,
[1999] F.C.J. No. 876 (T.D.) (QL), at paras. 14-16. This inquiry is the first
stage of a two-part process in demonstrating whether an applicant has met the
statutory residency requirement under the Act: see Zhao v. Canada (Minister
of Citizenship & Immigration), 2006 FC 1536, 306 F.T.R. 206, at para.
49. Indeed, the establishment of a residence in Canada is a condition
precedent to obtaining citizenship. Where the evidence demonstrates that
residence has not been established, inquiries as to whether residence has been
maintained or evidence as to whether the applicant has centralized his mode of
living in Canada become irrelevant: see Canada (Minister of Citizenship
and Immigration v. Tarfi, 2009 FC 188, [2009] F.C.J. No. 244 (T.D.) (QL),
at para. 35.
[Emphasis added.]
[40]
Other jurisprudence has reiterated the two parts
of the Papadogiorgakis test. In Canada (Minister of
Citizenship and Immigration) v Camorlinga-Posch, 2009 FC 613, 347 FTR 37,
the Court found:
[18] According to the second category,
extended absences from Canada will not be fatal to a Citizenship request if the
applicant can demonstrate that he or she had established his or her
residence in Canada before leaving and if Canada is the country in which he
or she has centralized his or her mode of existence (Re Papadogiorgakis,
[1978] 2 F.C. 208 and Canada (Minister of Citizenship and Immigration) v.
Nandre, 2003 FCT 650, 234 F.T.R. 245).
[Emphasis added.]
[41]
The logic of the Papadogiorgakis test is
that a person does not cease to reside in Canada when he or she leaves for only
a temporary purpose (Papadogiorgakis at para 16), even if that period is
fairly lengthy. However, this logic does not apply where a residence has not
first been established in Canada to return to and to maintain as one’s “centralized mode of living.”
[42]
In the present case, the Court must consider,
first, whether the Citizenship Judge understood that the establishment of residence
before or at the outset of the relevant period was a requirement before
excusing any temporary absences in the relevant period; second, whether the
Judge found that such residence had been established; third, if the Judge found
that such residence had been established, whether that finding is reasonable
based on the evidence on the record; and, fourth, if this condition precedent is
reasonably found to be met, whether the evidence supports the finding that Mr.
Iluebbey also met the requirement of maintaining his residence or centralizing
his mode of living in Canada.
[43]
In Canada (Minister of Citizenship and
Immigration) v Du, 2016 FC 420, [2016] FCJ No 435 (QL), Justice Strickland
considered the application of Re Koo, (1992) 59 FTR 27, which is a
similar qualitative approach to determining residency, and found that the
assessment of whether residence has been established at the outset of the
period does not need to be explicit:
[10] In my view, the Applicant was
correct that the jurisprudence has established a two-part approach to the
assessment of an applicant’s residency under s 5(1)(c) of the Citizenship
Act (see Ojo and Hao). However, the jurisprudence has also
established that the first part of the test, the determination of whether
residency has been established, need not be explicit and may be implied in a
citizenship judge’s reasons (Ojo at para 28; Canada (Citizenship and
Immigration) v Khan, 2015 FC 1102 at para 18; Canada (Citizenship and
Immigration) v Lee, 2016 FC 67 at paras 21-23 [Lee]).
[44]
In the present case, the reasons of the
Citizenship Judge did not explicitly set out that Mr. Iluebbey had
established a residence in Canada before or at the outset of the relevant
period. However, the Judge found that Mr. Iluebbey “has
provided sufficient documentation to prove that he and his family has [sic]
established residence in Canada.” The Judge also stated, with respect to
the lack of declared addresses in 2008 and 2011, that “he
always had the Toronto address declared in his application.” In my view,
this statement, read in the context of the evidence on the record, including
the residence information set out in the citizenship application and RQ, which
showed rental addresses dating back to 2006 and into the early part of the
relevant period, conveys that the Citizenship Judge, at least implicitly, found
that the threshold of residency before or at the commencement of the relevant
period was met.
[45]
The citizenship application notes a rental
address from January 2008 to November 2010 and an address on Millview Crescent
from November 2011. The RQ lists a rental address from August 2006 to September
2008, another rental address from September 2008 to October 2010, and the
Millview Crescent address, as owner, from October 2010. The discrepancy with
respect to the Millview Crescent address appears to be a typo and is
immaterial.
[46]
The Citizenship Judge acknowledged that the “quantity” of the documents regarding residency was
not extensive, but concluded that the evidence was sufficient. It is not the
role of the Court to re-weigh the evidence. The Citizenship Judge’s implicit
finding that Mr. Iluebbey had established residence before the relevant period
was supported by the evidence accepted and weighed by the Judge. It is not an
unreasonable finding that the apartment rented from 2006 to 2008 was the
established residence the Citizenship Judge referred to in the statement that “he always had the Toronto address declared in his
application.”
[47]
As noted, the record includes information
provided by Mr. Iluebbey to the Citizenship Judge post-hearing and
includes a cover letter which explained that there are no rental agreements or
documents for the apartments the family lived in because they paid by money
order at the request of their landlord. The Citizenship Judge accepted the
explanation. The letter also describes the apartments as within the school
boundaries where the children were enrolled. The school records, although some
are dated after the relevant period, indicate that the two older children (born
in 2003 and 2004) had been enrolled in that school since September 2008. The
evidence portrays a family living in Canada, while Mr. Iluebbey travelled to
Africa and returned to his family in Canada and to his Canadian business
interests. This appears to reflect the circumstances contemplated in Papadogiorgakis
at para 16.
[48]
With respect to the finding that Mr. Iluebbey
had established his centralized mode of living in Canada, the evidence relied
on by the Citizenship Judge was not extensive. However, when the evidence that
falls outside the relevant period is excluded, there remains the tax
assessments, tuition paid to a distance learning MBA program, a few bank
statements from a joint account with his wife, school records for the children,
a Baptismal certificate for the child born in Canada, a First Communion certificate,
the certificate of incorporation for Afromedia along with its CRTC licence and
other print-outs of Afromedia information, and business related emails on which
Mr. Iluebbey was copied.
[49]
Mr. Iluebbey had no income for 2008 and 2009.
His explanation that the start-up Afromedia business did not show profits at
that time was accepted by the Citizenship Judge as a credible explanation. The
Citizenship Judge also accepted that the nature of Mr. Iluebbey’s role in the
Afromedia business required his travel to Africa to seek out content for the
business.
[50]
I do not agree with the respondent’s submission
that the Citizenship Judge ignored the weaknesses and gaps in the evidence and
that the findings regarding the initial and ongoing establishment of residence
are not justified. The Citizenship Judge acknowledged that the evidence was not
extensive, probed the concerns and accepted the explanations offered by Mr. Iluebbey
as credible. The Citizenship Judge noted that the application was not up to the
customary standards, yet found that there was sufficient evidence to establish
the qualitative test.
[51]
As the respondent notes, judicial review is
focussed on the reasonableness of the decision. The reasons need not address or
make a finding on each element of the evidence considered in support of the
application. The Court’s role is not to re-weigh the evidence and re-make the
decision.
[52]
I have followed the guidance of Newfoundland
Nurses in assessing the reasonableness of the Citizenship Judge’s decision
and have looked to the record “for the purpose of
assessing the reasonableness of the outcome” (at para 15). The reasons,
although not a model of clarity and not extensive, reveal that the Citizenship
Judge grasped that the Papadogiorgakis test called for a two-part
assessment of residence. The reasons are sufficient to allow me to understand
why the Citizenship Judge made his decision that Mr. Iluebbey had established
and maintained residence in Canada and showed sufficient qualitative
attachment, or had centralized his mode of living in Canada. I have also
considered that the Citizenship Judge found Mr. Iluebbey’s explanations to be
credible, and such findings are owed deference in the particular circumstances
of this case. The reasons, together with the record, permit me to find that the
decision falls within the range of acceptable outcomes and is reasonable.
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