Docket: T-782-16
Citation:
2017 FC 39
Ottawa, Ontario, January 12, 2017
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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SAMAR EL SAYED
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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]
This is a judicial review of a decision by an
officer [the Officer] of Citizenship and Immigration Canada holding the
position Citizenship Supervisor, dated April 21, 2016, refusing the Applicant’s
application for Canadian citizenship and imposing a prohibition period during
which any subsequent application for citizenship she submits within five years
will be refused, based on the Officer’s determination that the Applicant
misrepresented material facts in relation to her citizenship application.
[2]
As explained in greater detail below, this
application is dismissed.
II.
Background
[3]
The Applicant, Ms. Samar El Sayed, is an
Egyptian citizen. She arrived in Canada on December 4, 2001 as a permanent
resident and applied for Canadian citizenship on June 15, 2013. As such, the
relevant period for assessing the number of days she was resident in Canada was
from June 15, 2009 to June 14, 2013. Ms. El Sayed declared 1422 days of
physical presence in Canada and 38 days of absence during that period. On her
application, she declared that she was a housewife and left her education and
employment histories blank.
[4]
The Officer subsequently sent a fairness letter
to Ms. El Sayed, alleging misrepresentation in her application and giving her
thirty days to respond, following which she attended an oral hearing with the
Officer on February 10, 2016. The Officer advised the Applicant of a LinkedIn
account bearing the name “Samar Hegazy”, a name
which Ms. El Sayed indicated on her application she sometimes uses. The
LinkedIn account contained information, including education and employment
history which appeared to contradict information in Ms. El Sayed’s application
and her claim of residency in Canada. She was given an opportunity to provide
additional documentation to support her claim and refute the allegations of
misrepresentation. Ms. El Sayed provided further submissions on April 12, 2016.
[5]
On April 21, 2016, the Officer issued the
decision that is the subject of this judicial review, refusing Ms. El Sayed’s citizenship
application and imposing the prohibition period against future applications.
[6]
In the reasons for his decision, the Officer
noted that the LinkedIn account indicates employment in the banking industry
outside of Canada during the relevant period, specifically with Mashreq Bank,
United Arab Emirates [UAE], as Head of Business Strategy Planning &
Development, Private Banking, from April 2007 to August 2009; Vice President
Private Banking, Middle East & North Africa, with Arner Bank from February
2010 to July 2011; and presently Executive Director, Private Banking, Middle
East & Africa, with UBP. The Officer noted that Ms. El Sayed refuted the
evidence of the LinkedIn account, indicating that she did not create it, nor
was the information accurate. However, the Officer observed that Ms. El Sayed
did not refute the education history listed on the LinkedIn account and stated
that she did attend Cairo University. He also noted that, when Ms. El Sayed initially
applied for permanent residence in Canada, she listed her occupation as a banker,
which accords with the employment listed on the LinkedIn account. Although Ms.
El Sayed claimed the account belongs to another person named Samar Hegazy, the
Officer observed that she stated in her citizenship application that she also
goes by the name Samar Hegazy.
[7]
The Officer considered the documentary evidence Ms.
El Sayed provided to refute the allegations of misrepresentation. She provided
a letter from the Human Resources department of Mashreq Bank in Dubai, UAE,
dated March 16, 2016, stating that she was not employed with their company. However,
the Officer found several discrepancies in this letter, leading to the
conclusion that this document was not credible: it contained a misspelling of the
Applicant’s name, it bore no name of an employee associated with the Human
Resources department; the company logo on the letterhead did does not match
that on the company website, and it included phone and fax numbers and an
address that did not match those on the website. The letter also did not
address whether the bank had employed a “Samar Hegazy”,
referring only to having no employee by the name of “Samar
Elsayed”. The Officer therefore rejected this evidence and found on a
balance of probabilities that Ms. El Sayed was in fact employed with Mashreq
Bank until at least August 2009, thus misrepresenting herself in the
citizenship process by failing to truthfully declare her work history and
absences from Canada.
[8]
With respect to the other two banks, both based
in Switzerland, Ms. El Sayed was unable to obtain written evidence. She instead
submitted a statutory declaration, in which she attested that she was not
employed with either bank and that each of the banks had confirmed to her
verbally that it had no record of an employee with the name Samar El Sayed. The
Officer rejected this evidence in light of an article entitled “Gulf Women – A Growing Segment”, which includes a
photo of Ms. El Sayed. The Officer showed this article to Ms. El Sayed at the
oral hearing and noted in the decision that she did not refute that the
article, which quoted a Samar Hegazy, used her photograph. However, Ms. El Sayed
took the position that the photo could have been used without her knowledge. Based
on this article, the information in the LinkedIn account, and the lack of
documentary evidence, the Officer concluded on a balance of probabilities that
the Applicant was employed with Aner Bank, Switzerland. In the absence of
documentation from UBP, the Officer also determined on a balance of
probabilities that she was employed with them in Switzerland. As a result, the
Officer again determined that the Applicant had misrepresented the information
in her citizenship application.
[9]
The Officer also reviewed the record of entries
and exits to Egypt and the UAE provided by Ms. El Sayed, as well as an email
exchange from government officials in Switzerland confirming that no such
control records exist for their country. The Officer observed that the record
of movement from the UAE did not cover the entire relevant period and concluded
that the record of movement from UAE and Egypt was contradicted by the evidence
demonstrating that Ms. El Sayed was employed in Switzerland from at least
February 2010 to the end of the relevant period. The Officer also noted that,
while Ms. El Sayed’s passport number 4020972 was stated to have been renewed on
December 20, 2008, the record of movement for her travel to the UAE indicated
that she exited Dubai on December 14, 2008 and re-entered Dubai on December 22,
2008.
[10]
Finally, the Officer noted that Ms. El Sayed had
declared only three absences from Canada on her citizenship application and
residence questionnaire, all involving travel from Canada to New York. However,
the Officer found that these absences were not supported by the evidence in the
passports Ms. El Sayed had provided, referring in particular to the US port of
entry code in her passport as indicating that she arrived from a country other
than Canada. The Officer therefore determined that Ms. El Sayed had misrepresented
her declared absences in the relevant period and had possibly withheld another
passport with evidence of travel during this period.
[11]
The Officer was therefore satisfied on a balance
of probabilities that Ms. El Sayed had misrepresented material circumstances
related to a relevant matter which would induce an error in the administration
of the Citizenship Act, RSC 1985, c C-29 and therefore refused her
application under s.22(1)(e.1) and imposed a prohibition of five years pursuant
to s.22(1)(e.2).
III.
Issues and Standard of Review
[12]
Whether a citizenship officer erred in finding
that an applicant misrepresented material facts on her or his citizenship
application is reviewable on a standard of reasonableness (see Huang v
Canada (Minister of Citizenship and Immigration), [2005] FCJ No. 1078, Housen
v Nikolaisen, 2002 SCC 33, Canada (Minister of Citizenship and
Immigration) v Sturabotti, 2009 FC 777).
[13]
The parties’ arguments raise the following
issues for the Court’s consideration in this application for judicial review:
A. Is a personal affidavit by the Applicant required to support her
arguments?
B.
Is the Officer’s decision reasonable?
IV.
Analysis
A.
Preliminary Matter
[14]
As a preliminary matter, Ms. El Sayed requests
an amendment of the style of cause in this application to correct the spelling
of her name to “SAMAR EL SAYED”. The Respondent
does not object, and the Court is prepared to grant this amendment.
B.
Is a personal affidavit by the Applicant
required to support her arguments?
[15]
Relying on the decision of Canada (HRC) v
Pathak, [1995] 2 FC 455 (CA), and Rule 12(1) of the Federal Courts Citizenship, Immigration and Refugee
Protection Rules, the Respondent takes the position that a personal
affidavit of the Applicant is necessary and that, where there is no such affidavit,
and therefore no evidence based on personal knowledge, any error asserted by
the Applicant must appear on the face of the record. The Respondent therefore
submits the bulk of Ms. El Sayed’s arguments are improper and ought not to be entertained by this
Court, as they represent an attempt to offer alternate explanations for the
Officer’s concerns, without any supporting evidence.
[16]
The affidavit filed on Ms.
El Sayed’s behalf was sworn by a legal assistant in the
employ of her solicitors. It is restricted to attaching as exhibits copies of
the documentation that formed part of the record before the Officer. I find
nothing improper in Ms. El Sayed’s reliance on this
affidavit in her application.
[17]
The Respondent’s counsel explained at the
hearing that the principal concern, surrounding the lack of an affidavit sworn
by Ms. El Sayed, related to the Applicant advancing arguments for which there
was no evidentiary support. As an example of such a concern, I note that Ms. El
Sayed asserts that the Officer failed to consider that there are more than 10
LinkedIn profiles of persons with the name Samar Hegazy and whether the
Applicant was one of the others. Ms. El Sayed has not referred to evidence to
support the assertion that there are 10 such profiles. However, my decision on
this application does not turn on this argument or on any other argument for
which there is insufficient evidentiary support. I find the record before the
Court is sufficient to adjudicate this application.
C.
Is the Officer’s decision reasonable?
[18]
Ms. El Sayed takes the position that the
Officer’s finding that the LinkedIn profile belongs to her is based on
speculative conclusions and is therefore unreasonable. She argues that anyone
can create a LinkedIn profile, and that there is no explanation as to why the
Officer believed that this profile should carry more weight than her oral
testimony. Ms. El Sayed takes particular issue with the Officer relying on unsecure
information from the internet. She argues this information formed the basis for
the Officer’s conclusion that she worked for the foreign banks reflected in the
LinkedIn profile and contributed to the Officer’s analysis that the entry/exit
records and passport documentation she submitted did not support her declared
absences in the relevant residence period.
[19]
At the hearing of this application for judicial
review, Ms. El Sayed relied heavily on this Court’s decision in ITV
Technologies Inc. v WIC Television Ltd., 2003 FC 1056 [ITV], in
which Justice Tremblay-Lamer considered the reliability and admissibility of
evidence obtained from the internet. Ms. El Sayed referred in particular to the
following analysis at paragraphs 16 to 18 of that decision:
[16] With regard to the reliability of
the Internet, I accept that in general, official web sites, which are developed
and maintained by the organization itself, will provide more reliable
information than unofficial web sites, which contain information about the
organization but which are maintained by private persons or businesses.
[17] In my opinion, official web sites
of well-known organisations can provide reliable information that would be
admissible as evidence, the same way the Court can rely on Carswell or C.C.C.
for the publication of Court decisions without asking for a certified copy of what
is published by the editor. For example, it is evident that the official web
site of the Supreme Court of Canada will provide an accurate version of the
decisions of the Court.
[18] As for unofficial web sites, I
accept Mr. Carroll's opinion that the reliability of the information obtained
from an unofficial web site will depend on various factors which include
careful assessment of its sources, independent corroboration, consideration as
to whether it might have been modified from what was originally available and
assessment of the objectivity of the person placing the information on-line.
When these factors cannot be ascertained, little or no weight should be given
to the information obtained from an unofficial web site.
[20]
The decision in ITV was affirmed by the
Federal Court of Appeal (2005 FCA 96), although, at paragraphs 29 to 31, the
appellate Court expressly declined to take a position on the Federal Court’s approach
to internet evidence.
[21]
Ms. El Sayed also referred the Court to the
decision of the Saskatchewan Court of Queen’s Bench in Thorpe v Honda
Canada, Inc., 2010 CarswellSask 78, which at paragraphs 20 to 24 described
the ITV analysis of the reliability of internet evidence as the test to
be met to make such evidence admissible in Court proceedings. In 1429539
Ontario Ltd. v Cafe Mirage Inc., 2011 FC 1290, at paragraph 82, Justice
Mandamin declined to rely upon internet evidence in the absence of expert
evidence on its reliability.
[22]
Ms. El Sayed’s position is that the Officer did
not engage in the analysis of the factors set out in paragraph 18 of ITV
and therefore erred in relying on the internet evidence in refusing her
citizenship application. She acknowledges that the rules of evidence are
relaxed in administrative law proceedings but nevertheless argues that
consideration of the ITV factors is required before relying on internet
evidence, even if not a prerequisite to its admissibility.
[23]
The Respondent notes that ITV and the
other decisions relied on by Ms. El Sayed all involve the consideration of
evidence by a court, not by an administrative decision-maker as in the case at
hand. The Respondent submits that ITV is inapplicable to the role of an
immigration officer considering a citizenship application.
[24]
I agree with the Respondent’s position on this
issue. The formal rules of admissibility of evidence, applicable to civil
proceedings, do not apply in the matter at hand, as the Courts have repeatedly
held that the admissibility of evidence is relaxed in administrative
proceedings (see Gil v Canada (Minister of Citizenship and Immigration),
172 FTR 255, at para 12; Ossé v Canada (Minister of Citizenship and
Immigration), 2004 FC 1552, at para 15). While. Ms. El Sayed’s arguments
focused more on the reliability of evidence than on its admissibility, she has
referred the Court to no authority to support her position that the analysis in
ITV applies even in that respect to administrative proceedings.
[25]
Rather, the appropriate approach to issues of
the sort raised by Ms. El Sayed is explained and demonstrated by the decision
in Jahazi v. Canada (Minister of Citizenship and Immigration), 2010 FC
242 [Jahazi], which considered an immigration officer’s reliance on
information obtained from the internet, including from the open source website
Wikipedia. At paragraphs 56 to 61, Justice de Montigny considered the
applicant’s arguments that the officer had erred by relying on information
collected for intelligence purposes and information obtained from the internet,
which the applicant submitted was unreliable. The Court acknowledged the
reliability concerns but held that these concerns should not lead to a
conclusion that the information should have been disregarded. Nor was it open
to the Court to determine what weight should appropriately have been given to
the evidence. Rather, the concerns about the reliability of the evidence should
be factored in when assessing the reasonableness of the officer’s conclusions.
[26]
Adopting that approach, I am unable to conclude
that the Officer’s conclusions in the present case were unreasonable. I
recognize that the Officer’s decision was significantly influenced by the
content of the LinkedIn profile in the name of Samar Hegazy, which Ms. Sayed
says she did not create and is not accurate. However, the Officer afforded her
an opportunity to respond to this evidence, and the information she provided
all spoke to whether the three banks identified in the LinkedIn profile had a
record of an employee named Samar El Sayed or Samar Elsayed. Neither the letter
purportedly from Mahsreq Bank nor Ms. Sayed’s statutory declaration addressed
whether these banks had employed a Samar Hegazy, the name in the LinkedIn
profile which had given rise to the Officer’s concerns based on the Officer’s
observation from the Applicant’s citizenship application that this was a name
she used.
[27]
The Officer also relied on the magazine article
which reflected an interview with Samar Hegazy, deputy head of the Middle East
and North Africa desk of Arner Bank, and included a photograph of Ms. El Sayed.
Ms. El Sayed suggested that the photo could have been used without her
knowledge, and she argues in this application that this article, like the
LinkedIn profile, is unreliable internet evidence. However, given that the
article appears to be a publication of Arner Bank, this argument is less
compelling than in relation to the LinkedIn profile. Given that the article
corroborates the information in the LinkedIn profile, and given Ms. Sayed’s
failure to provide evidence addressing the employment of Samar Hegazy, I cannot
find the Officer to have acted unreasonably in concluding that Ms. El Sayed had
in fact been employed with the banks identified in the profile and had
therefore made misrepresentations in her citizenship application.
[28]
I also note that, in oral argument, Ms. El
Sayed’s counsel characterized the Officer’s treatment of the internet evidence
as a breach of procedural fairness, submitting that the Officer had an
obligation to confront her not only with the internet evidence but also with
corroborating or expert evidence supporting its reliability. Recognizing that
such an issue would be reviewable on a standard of correctness, I nevertheless
find no merit to this position. Procedural fairness was achieved by giving Ms.
El Sayed an opportunity to respond to the internet evidence.
[29]
My finding, that the Officer’s conclusions
surrounding the evidence of Ms. El Sayed’s employment are reasonable, largely
disposes of her arguments in relation to the entry and exit records, as she
argued principally that unreasonable reliance on the internet evidence
influenced the Officer’s conclusions with respect to those records. She also
argues that the Officer engaged in speculation in analyzing those records, in
relation to the lack of US entry stamps and the US port of entry code in her
passport indicating that she arrived from a country other than Canada. These
arguments relate to the Officer’s weighing of the evidence, which it is not the
role of the Court to question. I find nothing unreasonable in this aspect of
the Officer’s analysis.
V.
Certified Question
[30]
Ms. El Sayed proposes that the Court certify the
following question as a question of general importance warranting consideration
by the Federal Court of Appeal:
Do the criteria for the consideration of
evidence obtained from the internet, set out in ITV Technologies Inc. v WIC
Television Ltd., 2003 FC 1056, apply to evidence in an administrative law
proceeding?
[31]
The Respondent opposes certification on the
basis that this is neither a question of broad significance or general
application, nor would it be determinative of an appeal.
[32]
My conclusion is that the issues raised by Ms.
El Sayed surrounding the internet evidence involved in this case are properly
characterized as related to the Officer’s weighing of the evidence, which is
highly specific to the facts of an individual case and to which the applicable principles,
such as expressed in Jahazi, are well established. I find that the proposed
question does not meet the test for certification, and I decline to certify
this question.
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