Docket: T-1475-15
Citation:
2016 FC 951
Ottawa, Ontario, August 19, 2016
PRESENT: The
Honourable Madam Justice Elliott
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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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WEI ZHANG
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review pursuant
to subsection 14(5) of the Citizenship Act, RSC 1985, c C-29 [Act] of a decision
of a Citizenship Judge (CJ) dated August 4, 2015, that approved the
Respondent’s application for citizenship. The Applicant submits that the
Respondent did not meet the residency requirements set out under section
5(1)(c) of the Act during the relevant period which was from November 21, 2003
to November 21, 2007. Specifically, the Applicant alleges the Respondent failed
to provide sufficient proof of residence in Canada from April 1, 2004 to
October 17, 2007.
[2]
For the reasons that follow this application is
dismissed.
I.
Background
[3]
The Respondent is a citizen of China. He entered
Canada and received permanent resident status on October 8, 2002. He applied
for citizenship on November 21, 2007 declaring 41 days of absence and 1419 days
of presence.
[4]
The File Preparation and Analysis Template
(FPAT) prepared by an analyst for the Applicant stated that the Respondent “has not provided proof of residence from 2004/01/01 to
2007/10/17”. The FPAT identified and passed on to the CJ for further
inquiry several concerns about the Respondent’s application including:
i.
Whether his Passport was extended in Canada or
Beijing;
ii.
That random, sparse evidence of bank, credit
card, Rogers and Fido statements was produced;
iii.
The residence lease required rent greater than
his declared income plus he also had to support his wife and two children;
iv.
He only availed himself of OHIP services during
two months of the four year relevant period;
v.
There was no proof of his children’s school
attendance, his own volunteer work or his wife’s employment.
[5]
At the hearing, the Respondent produced an
original passport. Only a copy had been provided with his application. After
examining the original passport, the CJ asked the Respondent to provide further
documentation to support his claim. Shortly after the hearing the Respondent
provided:
i.
Lease agreements for the period April 1, 2005 to
October 1, 2007 and rental receipts from March 2003 to March 2007 for the rent
of an unfinished master bedroom;
ii.
School attendance summary for one son;
iii.
His Record of Employment for the period May 1,
2007 to October 31, 2007;
iv.
Income Tax Return information for 2007.
[6]
The CJ applied the strict physical presence test
set out in Re: Pourghasemi [1993] FCJ No. 232 and found, on a balance of
probabilities, that the Respondent had demonstrated he resided in Canada for
the number of days he claimed and he therefore met the residence requirement
under the Act.
II.
Issue and Standard of Review
[7]
At the hearing, the Applicant abandoned the
arguments in their written submissions that the hearing was procedurally
unfair. The only issue remaining is whether the CJ erred in finding the
Respondent met the residency requirement.
[8]
The standard of review of a decision of a
citizenship judge under the Act is reasonableness. (Canada (Citizenship and
Immigration) v Suleiman, 2015 FC 891 at para 18)
III.
Submissions
[9]
The Applicant submits that the declared and
proven income of the Respondent is insufficient to support a family of four and
purchase a house as the Applicant did in the fall of 2007. The Applicant also
alleges that as the CJ chose to apply the strict physical presence test the
Respondent had to show he was resident in Canada during the relevant period.
One indicator of residence is income, of which the Applicant alleges the
Respondent did not have enough to support his family.
[10]
The Applicant also submits the CJ in his reasons
for granting citizenship did not “connect the dots”
as he did not mention any other relevant evidence he considered. Given the
paucity of evidence in the record the Applicant says the finding does not
accord with the evidence. The Applicant submits that a grant of citizenship is
not a “rubber stamp” and the reasons for
decision do not show how the Respondent met the test or why the CJ found
nonetheless that he did.
[11]
Most critically, the Applicant submits that “if the citizenship judge examined the passport ‘very
carefully’” as he states in his reasons then the CJ misapprehended the
evidence because it casts doubt on the physical presence of the Respondent
during the relevant period.
[12]
The Respondent says there was no “rubber stamp” - the Applicant took eight years to
process the application. He notes the citizenship hearing was held on July 6,
2015 at which time, presumably because of the concerns identified in the FPAT,
the CJ asked the Respondent to submit additional documents. In response, after
the hearing, the Respondent delivered further documents including school attendance
records for 1 son, a lease agreement, a record of employment for the period May
1 – October 31, 2007, his 2007 income tax return, notices of assessment for
2004, 2005, 2006 and 2007 and some evidence for every year from 2003 to 2008.
[13]
The Respondent points out the FPAT simply says
the stamps in the passport indicate the Respondent “could
have been in China” when it was extended. The CJ indicated he looked
closely at the original passport. The Respondent also says the CJ has the
discretion to determine whether the evidence has satisfied him but the
Applicant seeks to have it re-weighed.
[14]
The Respondent says the CJ is in the best
position to assess the evidence. He met with the Respondent in person, he
looked at the issues raised in the FPAT, he closely examined the critical
documents and he satisfied himself as to the test.
IV.
Analysis and Conclusion
[15]
The Applicant claimed 1419 days of physical
presence. Under the strict physical presence test, an applicant for citizenship
must prove that during the four year period (1460 days) immediately preceding
the date of their application they had accumulated at least three years (1095
days) of residence in Canada.
[16]
In this case, whether the Respondent’s passport
was extended in Beijing on April 29, 2005 is important. If it was, it indicates
he was outside of Canada at a time when he said he was present in Canada. The
Applicant says the CJ misapprehended the passport evidence as it “casts doubt” on the days of presence by the
Respondent. But doubt is not proof. When there is doubt about an application it
is noted in the FPAT and the CJ is expected to address it at the hearing. In
this case, the CJ noted it and addressed it.
[17]
In his reasons for decision the CJ indicates he raised
the passport issue. He quizzed the Respondent about where the passport was extended.
The Respondent said he could not remember for sure because it was extended ten
years prior. The CJ says he then examined the Respondent’s original passport very
carefully and he could not find an entry stamp for China “around that period”. The FPAT notes the Respondent
had only submitted with his application a copy of his cancelled passport. At
the hearing, the Respondent provided his original passport. The CJ therefore
had before him evidence that the analyst who prepared the FPAT did not possess.
[18]
The CJ also determined there were two dates in
2007 in the passport that could be entry and exit stamps. He asked the
Respondent to provide documentation about his domicile in Canada during the
relevant period. The Respondent delivered the additional documents (as set out
in the background facts, above) and the CJ examined them. He then made his
determination that he was satisfied the Respondent met the residence
requirement.
[19]
The Applicant disagrees with the quality of the
evidence and the assessment of it made by the CJ. However, nothing in the Act
or the case law requires an Applicant to submit specific forms of evidence. The
citizenship judge must only be satisfied that an Applicant has met the
evidentiary onus. (Canada (Citizenship and Immigration) v Askari, 2014
FC 592 at para 14)
[20]
Here, the CJ’s summary, while brief, confirms he
turned his mind to the issues raised in the FPAT. He held a lengthy hearing
where he questioned the Respondent and accepted his answers. He examined the
documents provided with the application, considered the Residence Questionnaire
and the FPAT and required the Respondent to provide further documentation. The
CJ’s conclusion was that both during and after the hearing he “did not find valid elements to dispute the Applicant’s
statements about his days of physical presence”.
[21]
Whether the Court or the Applicant would have viewed
the evidence differently or arrived at the same conclusion is not relevant. The
evidence cannot be re-weighed. When, after a review of the record, the reasons
provided meet the criteria of justification, intelligibility and transparency and
the decision falls within the range of possible acceptable outcomes as
established in Dunsmuir v New Brunswick 2008 SCC 9 the decision is
reasonable. This also means that a reviewing court in giving deference to the
specialized tribunal should give “a respectful
appreciation that a wide range of specialized decision-makers routinely render
decisions in their respective spheres of expertise, using concepts and language
often unique to their areas and rendering decisions that are often
counter-intuitive to a generalist”. (Newfoundland and Labrador
Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
para 13)
[22]
I am satisfied the reasons provided by the CJ show
why he came to the conclusion he did. They meet the Dunsmuir criteria. I
am also mindful that he had the benefit of directly interviewing the Respondent
and examining the documents that were provided by the Respondent after which he
drew his conclusion based on his experience as a citizenship judge.
[23]
This application is therefore dismissed. Neither
party proposed a question for certification.
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