Date: 20020705
Docket: T-155-01
Neutral Citation: 2002 FCT 745
Between:
BASSEM CHAHROUR
Plaintiff
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Defendant
REASONS FOR ORDER
PINARD J.:
This is an appeal filed by the plaintiff (hereinafter "the applicant") pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act) of a decision of Ms. Jeanine C. Beaubien, Citizenship Judge of the Canadian Citizenship Office dated November 30, 2000, finding that the applicant did not meet the requirements of paragraph 5(1)(c) of the Act.
In dismissing the applicant's application, the Citizenship Judge observed:
[. . .]
I regret to inform you that your application for Canadian Citizenship is not approved. On November 2, 2000, you appeared before me for a hearing of your application. I found that you did not meet the requirements of paragraph 5(1)(c) of the Citizenship Act.
Under paragraph 5(1)(c) of the Citizenship Act, an applicant is required to have accumulated at least three years of residence in Canada within the four years immediately preceding his or her application.
Since I had doubts that you actually resided in Canada in the last four years, I requested additional documentation from you. Unfortunately, the documents that you submitted were, in my opinion, not satisfactory proof of residence in Canada.
Pursuant to subsection 15(1) of the Citizenship Act, I have considered whether or not to make a recommendation for an exercise of discretion under subsection 5(4) of the Act. Subsection 5(4) of the Act empowers the Governor in Council to direct the Minister to grant citizenship to any person in cases of special and unusual hardship or to reward services of an exceptional value to Canada.
I enquired at the hearing whether there were any circumstances that could justify such a recommendation. Since you were unable to provide me with any such evidence, I see no reason to make a recommendation to the Minister.
Pursuant to subsection 14(3) of the Act, you are therefore advised that, for the above reasons, your application for citizenship is not approved.
The residency requirements of paragraph 5(1)(c) of the Act are the following:
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5. (1) The Minister shall grant citizenship to any person who
[ . . . ]
(c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner:
(i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and
(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;
(Emphasis added.)
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5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
[ . . . ]
c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante:
(i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent;
(ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent.
(Mon emphase.)
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The applicant first alleges that the Citizenship Judge erred by relying on the CIC reports she had in her file because they constitute hearsay evidence. In Legault v. Canada (Secretary of State) (1997), 219 N.R. 376, Mr. Justice MacGuigan for the Federal Court of Appeal confirmed that immigration adjudicators are not bound by any legal or technical rules of evidence. He stated at pages 381-382:
In my respectful opinion the motions judge was mistaken in proceeding on the basis of the criminal law analogy, in the context of which her conclusion certainly was correct, as it would also have been in the case of extradition proceedings. For one thing, in such proceedings the indictment would be excluded as constituting hearsay evidence.
But s. 80.1(5) of the Act clearly establishes a different standard for immigration adjudicators. It reads as follows:
"An adjudicator is not bound by any legal or technical rules of evidence and, in any proceedings, may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case." (Emphasis added)
As this Court put it in Jolly v. Minister of Manpower and Immigration, [1975] F C. 216, 223 (per Thurlow, J., as he then was), in dealing with the same language, "the Board was entitled to found its judgment on the material in the exhibit if it considered what was in it to be credible and trustworthy in the circumstances." Indeed, in M.E.I. v. Gray, A-334-77, decided 14 January 1984 (per Heald, J.A.), this court decided that the Immigration Appeal Board was in error when it rejected evidence because the documents in question were not proven pursuant to the rules of evidence in civil actions. Dan-Ash v. Minister of Employment and Immigration (1988), 93 N.R. 33 (F.C.A.) (per Hugessen, J.A.), went further in holding that the Board was no more bound by the best evidence rule than by the hearsay rule. I do not see Nakkuda Ali v. M.F. de S. Jayaratne, [1951] A.C. 66, on which the respondent relied heavily to support a limitation of administrative discretion, as governing, given the precise statutory authority under the Immigration Act.
Based on the foregoing, I do not feel that the Citizenship Judge erred by considering the reports from Citizenship and Immigration Canada (CIC).
Moreover, it is my view that the applicant was duly confronted with the information the Citizenship Judge had in her possession and was given the opportunity to respond. The Reasons for Judge's Decision, at page 7 of the Canadian Citizenship Office file record, are very instructive on this point. They read:
J'ai questionné cette personne sur le manque de page puis sur ces absences réelles, était-ce vraiment tel que mis au dossier c.a.d. 22 jours?
Il a semblé surpris du manque de page. Et a insisté qu'il ne s'était pas absenté à plusieurs reprises. Je lui ai dit alors que sa réponse contredisait le rapport que j'avais. . . .
Consequently, although the applicant was not given the reports from CIC, he was appraised of the content and given an opportunity to refute them.
The applicant alleges that the Citizenship Judge erred by not considering the evidence and testimony in support of his application. In the case at bar, the Citizenship Judge had to determine whether the applicant, in the four years preceding April 1, 1999 (date of his application for Canadian citizenship) had accumulated three years of residence in Canada (from April 1, 1995 to April 1, 1999).
On this subject, Mr. Justice Muldoon in Re Hui (1994), 24 Imm.L.R. (2d) 8, at pages 14 and 15, stated:
What is the purpose of this legislative standard? It is surely not that applicants be out of Canada for any less than three out of four years. Parliament intends to confer citizenship not on de facto foreigners, but on persons who have been "in residence" in Canada, not absent, for three years during the previous four. It intends to confer citizenship on applicants who have "Canadianized" themselves by residing among Canadians in Canada. This cannot be accomplished abroad. Nor can it be accomplished by depositing bank accounts, rental payment, furniture, clothing goods, and more importantly, spouses and children - in a word, all except oneself - in Canada, while remaining personally outside Canada. Parliament prescribes three out of the preceding four years for qualifying for citizenship. Parliament does not speak of depositing anything, nor of a pied-à-terre where one's furniture can become "Canadianized", nor yet of intentions, some day, to become a Canadian, nor of the acquisition of provincial driver's licences. . . .
The applicant argues that the Statements of Remuneration paid for 1996 and 1998 as well as the letters from the Customer Service Manager of Banque Scotia and from the Customer Service Manager of the Bank of Montreal prove his residence in Canada. On this point I do not agree. I am of the opinion that these documents do not show that the applicant established or maintained residence in Canada during the relevant period.
As well, the letter dated July 24, 1999 from Mohammed Chahrour confirming that the applicant is his co-tenant does not indicate during which period of time the applicant was living with him. Moreover, the applicant's name is not specified on the lease for the period of time between July 1998 to June 1999.
With regards to the letter from the applicant's employer dated July 15, 1999, there is no indication first of all as to when exactly the applicant began working at Subway nor if he still works there. Furthermore, after having examined the documentation on record, I can find no evidence demonstrating the place of employment of the applicant in 1996.
As for the "Employee Detail 98-10-01 to 99-07-15" located at page 36 of the Citizenship Judge's file, this is only pertinent for the period of time from November 1998 to July 1999. As well, the information included after April 1, 1999 is not relevant to the present case. Based on this same reasoning, the documents contained at pages 37 and 38 of the Citizenship Judge's file are also not relevant here.
In light of the foregoing, I am of the view that the conclusions reached by the Citizenship Judge are reasonable and supported by the evidence.
The applicant alleges at paragraphs 13 of his Affidavit and 16 of his Memorandum of Fact and Law that he submitted the pages of his passport which had stamps affixed on them in conformity with the Citizenship application kit instructions that were attached to the Citizenship application which he had received. Based on the evidence before me, I feel this argument is without merit.
At page 83 of the Citizenship Judge's file, a letter dated June 23, 1999 and addressed to the applicant clearly requests that he provide a copy of "current and expired passports (all the pages)". The applicant did not comply with this request since he submitted a copy of his passport no. 0955332 which included only the following pages: 1-5; 8-25; 30-33 and 40-47.
As evidenced by the Reasons for Judge's Decision at page 7 of the Citizenship Judge's file, the applicant was confronted with these facts, but was unable to provide a satisfactory explanation:
A cause des notes inscrites au SSOBL ainsi que les notes manuscrites de l'agent de l'immigration et aussi à cause du manque de pages (12 pages) au passeport.
J'ai questionné cette personne sur le manque de page puis sur ces absences réelles, était-ce vraiment tel que mis au dossier c.a.d. 22 jours?
Il a semblé surpris du manque de page. Et a insisté qu'il ne s'était pas absenté à plusieurs reprises. Je lui ai dit alors que sa réponse contredisait le rapport que j'avais. Que nous, (les juges) faisons passer les auditions pour aider les appliquants à s'expliquer si nécessaire et non pas pour refuser.
A toutes les questions posées il semblait très à l'aise sauf pour le côté absences. . . .
Considering that the issue of residency is central to the case at bar, I feel that the Citizenship Judge fulfilled her duty to examine all available documentary evidence, including passport entries and to verify the accuracy of absences from Canada (see Canada (M.C.I.) v. Jreige (1999), 175 F.T.R. 250). The applicant has failed to convince the Court that the Citizenship Judge erred in law or that she based her decision on an erroneous finding of fact that she made in a perverse or capricious manner or without regard for the material before her.
For all these reasons, this appeal is dismissed.
JUDGE
OTTAWA, ONTARIO
July 5, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-155-01
STYLE OF CAUSE: Bassem Chahrour v. Minister of Citizenship and Immigration Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 12, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: July 5, 2002
APPEARANCES:
Mr. Gregory Azancot FOR THE PLAINTIFF
Mr. Mario Blanchard FOR THE DEFENDANT
SOLICITORS OF RECORD:
Lapin Mauer FOR THE PLAINTIFF
Barristers & Solicitors
Westmount, Quebec
Mr. Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario
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