Date: 20101208
Docket: T-1167-09
Citation: 2010
FC 1254
Ottawa, Ontario, December 8, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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HAFIZ JAMEEL AHMED SHAIKH
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an appeal under section 21 of the Federal Courts Act, R.S.C. 1985, c.
F-7 and subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29,
of a decision dated May 20, 2009 of a Citizenship Judge wherein the applicant's
application for Canadian citizenship was denied on the basis that he had not
met the residency requirements under paragraph 5(1)(c) of the Citizenship
Act.
[2]
The
applicant requests that the decision of the Citizenship and Immigration Canada
(CIC) Citizenship Judge be set aside and the matter referred back to a
different Citizenship Judge for re-determination.
Background
[3]
Hafiz
Jameel Ahmed Shaikh (the applicant) is a citizen of Pakistan. He has been
a permanent resident in Canada since November 11, 2002.
[4]
In
January 2007, the applicant went to Pakistan to care for his ill
parents-in-law and attend to personal affairs. He returned to Canada in October
2007.
[5]
Following
his return from Pakistan, the applicant filed for citizenship on
November 9, 2007. In his application, he calculated that he had been absent
from Canada 286 days
since he became a permanent resident.
[6]
The
applicant failed to attend the following scheduled appointments:
1. Citizenship Test,
April 18, 2008;
2. First Hearing, June
3, 2008; and
3. Final Hearing,
August 18, 2008.
[7]
On
August 12, 2008, CIC received a letter from an immigration consulting agency
which stated that the applicant was unable to attend his hearing due to the hospitalization
and severe illness of his father and mother-in-law.
[8]
The
applicant attended a hearing with a Citizenship Judge on December 5, 2008. He
was requested to provide at the hearing, copies of all of his passports and
copies of rental agreements for the years 2004 to 2007.
[9]
The
applicant alleged that he lost his previous passport numbered J797282. He
submitted a police report dated April 16, 2007, which indicated that he
reported this to the police in Karachi, Pakistan.
[10]
The
copy of the passport provided to the Citizenship Judge by the applicant was
passport number AZ5192901. This passport was issued May 3, 2007. It indicates
that the previous passport was numbered KE139458. The applicant alleges that
this previous passport was replaced by the government of Pakistan with a
machine readable passport and that he no longer possesses the previous
passport.
[11]
The
applicant provided the Citizenship Judge with a tenancy application in his
brother’s name, dated October 10, 2002, which indicated that the applicant was
an occupant. He also provided a letter from the landlord acknowledging that the
applicant is an occupant of the apartment in this tenancy agreement. This
letter was dated November 5, 2007.
[12]
The
applicant further provided T4 forms and notices of assessment from the Canada
Revenue Agency for each year of 2002 to 2007 inclusive. However, these forms do
not indicate when he earned this salary during each year. In addition, the
total income earned in each of the documents varies from $1,400 one year to
$9,600 another year.
[13]
A
letter from the Minister of Health and Long-Term Care indicated that no medical
claims had been processed for the applicant between November 1, 2002 and
December 5, 2008.
[14]
The
Citizenship Judge declined to approve the citizenship application and the
applicant appealed to this Court.
Citizenship Judge’s
Decision
[15]
The
Citizenship Judge found that the onus was on the applicant to satisfy him that
he fulfilled the requirements of the Citizenship Act. The Citizenship
Judge found that the applicant did not prove that he met the residence
requirement of paragraph 5(1)(c) of the Citizenship Act and his
application was not approved.
[16]
The
applicant had been requested to provide a copy of all his passports and a copy
of rental agreements for 2004 to 2007, which he did not provide. Since the
applicant did not provide a copy of his previous passport number KE13948 (the
actual passport number was KE139458), the Citizenship Judge held that he was
unable to verify all of the applicant’s absences from Canada.
[17]
The
Citizenship Judge found that the Federal Court jurisprudence does not require
physical presence for the entire 1,095 days when there are special
circumstances. However, he stated that too long of an absence from Canada during the
minimum period was contrary to the purpose of the residence requirement of the Citizenship
Act.
[18]
In
addition, the Citizenship Judge noted that the applicant did not file any
material in support of the use of his discretion to issue a favourable recommendation.
As such, the Citizenship Judge declined to make such a recommendation.
Issues
[19]
The
applicant submitted the following issues for consideration:
1. Did the tribunal err
in rejecting cogent evidence?
2. Did the tribunal
ignore uncontradicted evidence?
3. Did the tribunal
improperly decline to exercise its jurisdiction for discretion?
[20]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Citizenship
Judge err in determining that the applicant did not meet the residence
requirement under paragraph 5(1)(c) of the Citizenship Act?
3. Did the tribunal
improperly decline to exercise its jurisdiction for discretion?
Applicant’s Written
Submissions
[21]
The
applicant submits that the Citizenship Judge did not consider the evidence in
front of him.
[22]
The
applicant submits that he provided a reasonable explanation for why he did not
produce the residential tenancy agreements for the years 2004 to 2007: that he
is in a continuing tenancy where a new agreement is not signed every year. He
also submits that he provided evidence, by way of a police report, that his
previous passport was lost and therefore could not be produced. Since the
evidence he presented was uncontradicted, the Citizenship Judge had a duty to make
a decision based on a reasonable assessment of the evidence as a whole.
[23]
The
applicant further submits that the materials, explanations and excuses provided
by him at the citizenship hearing should have been considered by the
Citizenship Judge in deciding to use his discretion to make a favourable
recommendation.
[24]
The
applicant submits that there was a duty to provide reasons for rejecting the
applicant’s application in clear and unmistakable terms.
Respondent’s Written
Submissions
[25]
The
respondent submits that the determination of whether a candidate meets the
residency requirement should be assessed on the standard of reasonableness.
[26]
The
respondent submits that notwithstanding the different formulations of the
residency test, applicants for citizenship must objectively demonstrate that
they have established residence in Canada and that they have
maintained their established residence throughout the period of at least three
years preceding their application.
[27]
The
applicant did not meet the burden of proof for establishing residence on a
balance of probabilities. The applicant was requested to produce all passports
and previous rental agreements for the years 2004 to 2007. However, he did not
produce his previous passports, his record of landing or his residential
tenancy agreements for some of the period in question. Without these, the
respondent submits, it was reasonable for the Citizenship Judge to find that
there was inadequate evidence to assist him in verifying the applicant’s
absences from Canada.
Analysis and Decision
[28]
I
would note that this matter should have proceeded by way of a notice of appeal
as the applicant has a right to appeal pursuant to subsection 14(5) of the Citizenship
Act. I will therefore apply Rule 57 of the Federal Court Rules,
SOR/98-106 and convert the application for judicial review into an appeal.
[29]
Issue
1
What is the
appropriate standard of review?
A standard of review
analysis need not be conducted in every case. Where the standard of review
applicable to a particular issue before the court is determined in a
satisfactory manner by previous jurisprudence, the reviewing court may adopt
that standard of review (see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at paragraph 57).
[30]
The
jurisprudence is settled that a determination about whether an applicant meets
the residency requirement of the Citizenship Act is one of mixed fact
and law and is reviewable on a standard of reasonableness (see Johar v. Canada
(Minister of Citizenship and Immigration), 2009 FC 1015, 83 Imm. L.R. (3d)
299 at paragraphs 17 and 18; Canada (Minister of Citizenship and Immigration)
v. Arastu,
2008 FC 1222 at paragraphs 16 and17).
[31]
Issue
2
Did the Citizenship Judge
err in determining that the applicant did not meet the residence requirement
under paragraph 5(1)(c) of the Citizenship Act?
The applicant bears the burden
of proof to show that he meets requirements of the Citizenship Act on a
balance of probabilities (see
Maharatnam v. Canada (Minister of Citizenship and Immigration) (2000),
96 A.C.W.S. (3d) 198, [2000] F.C.J. No. 405 (QL) at paragraph 5; Malevsky c.
Canada (Ministre de la Citoyenneté et de l'Immigration), 2002 FCT 1148 at
paragraph 7).
[32]
This
includes proving the requirements of residency:
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5.(1) The Minister shall grant
citizenship to any person who
. . .
(c) is a
permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act, and has, within the four years immediately
preceding the date of his or her application, accumulated at least three
years of residence in Canada calculated in the following manner:
. . .
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5.(1)
Le ministre attribue la citoyenneté à toute personne qui, à la fois :
. .
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c)
est un résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration
et la protection des réfugiés 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 :
. . .
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[33]
The
term residence is not expressly defined
under subsection 2(1) of the Citizenship Act. Consequently,
decision-makers must look to the jurisprudence of the Federal Court to
understand the parameters of residency. In addition, since the Citizenship
Act precludes appeals to the Federal Court of Appeal through section 16 and
thus limits appellate review, there exist three concurrent tests for residency
found in the cases of: Re Papadogiorgakis (1978), 88 D.L.R. (3d) 243
(F.C.T.D.), [1978] F.C.J. No. 31 (QL) at paragraphs 15 to 17; Re Pourghasemi
(1993), 62 F.T.R. 122, [1993] F.C.J. No. 232 (QL) (F.C.T.D.); Re Koo,
[1993] 1 F.C. 286 (QL) (F.C.T.D.) at paragraph 10. The central difference
between these tests is the manner in which residency is measured. One test
counts the exact number of days physically present in Canada, while the others
look at physical presence as well as quality of attachment to Canada and the location
of an individual’s central mode of existence. However, with each test, the
applicant must be able to objectively show that he was physically present in Canada for some
period of time in addition to providing supplementary information for the tests
of Re Koo and Re Papadogiorgakis above.
[34]
The
applicant did not provide sufficient evidence to verify when he was absent from
Canada. The only
passport he submitted was issued on May 3, 2007, only six months before he
applied for citizenship. The tenancy applications he submitted indicate that he
was an occupant in his brother’s apartment from 2002 to 2007 but do not provide
evidence of when he was physically present in Canada. The same is
true of the Canada Revenue Agency documents he submitted. Finally, the
Minister of Health letter indicates that there were no claims processed for the
applicant in the six year period of November 1, 2002 and December 5, 2008.
[35]
It
was reasonable for the Citizenship Judge to conclude that he was unable to
verify any amount of time that the applicant was present in Canada and could
not approve the citizenship application. Previous case law confirms that a
Citizenship Judge may deny a citizenship application if he or she must rely on
“information
regarding absences from Canada that cannot be verified
by a passport examination” (Johar above, at paragraph 37).
[36]
Specifically,
in Farrokhyar v. Canada (Minister of Citizenship and Immigration), 2007 FC 697, 158
A.C.W.S. (3d) 878 at paragraph 18, Madam Justice Danièle Tremblay-Lamer held
that:
In the present case, the Judge was not
able to confirm the applicant's assertions regarding the number of days he was
present in Canada, given the inadequacy of his
evidence. Consequently, she could not logically make a determination of the
exact number of days he spent in Canada,
and cannot be faulted for her failure to do so.
[37]
The
reasons provided to the applicant for the decision clearly indicate that
because the applicant failed to provide satisfactory proof of residence in Canada, the Citizenship Judge
was unable to verify all of his absences. This fulfills the duty to provide
reasons.
[38]
In
my view, the Citizenship Judge’s decision was transparent, intelligible and
justified, and a possible outcome in view of the facts and the law.
[39]
Issue
3
Did the tribunal improperly decline to
exercise its jurisdiction for discretion?
The applicant claims that the
Citizenship Judge erred by not recommending the exercise of discretion pursuant
to subsection 5(4) of the Citizenship Act. I have reviewed the
Citizenship Judge’s reasons and the file materials and I agree with his
decision. There was insufficient evidence presented to him to allow him to make
a recommendation for the use of discretion.
[40]
For the
above reasons, the applicant’s appeal is dismissed.
JUDGMENT
[41]
IT IS
ORDERED that:
1. The applicant’s application for
judicial review is converted into an appeal.
2. The applicant’s appeal is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Citizenship Act, R.S.C. 1985, c. C-29
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5.(1) The
Minister shall grant citizenship to any person who
. . .
(c) is a
permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act, and has, within the four years immediately
preceding the date of his or her application, accumulated at least three
years of residence in Canada calculated in the following manner: . . .
(4) In order to alleviate cases of special and unusual
hardship or to reward services of an exceptional value to Canada, and
notwithstanding any other provision of this Act, the Governor in Council may,
in his discretion, direct the Minister to grant citizenship to any person
and, where such a direction is made, the Minister shall forthwith grant
citizenship to the person named in the direction.
14.(5) The Minister or the applicant may
appeal to the Court from the decision of the citizenship judge under
subsection (2) by filing a notice of appeal in the Registry of the Court
within sixty days after the day on which
(a) the citizenship
judge approved the application under subsection (2); or
(b) notice was
mailed or otherwise given under subsection (3) with respect to the
application.
. . .
16. Notwithstanding section
28 of the Federal Courts Act, the Federal Court of Appeal does not
have jurisdiction to hear and determine an application to review and set
aside a decision made under this Act if the decision may be appealed under
section 14 of this Act.
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5.(1)
Le ministre attribue la citoyenneté à toute personne qui, à la fois :
. .
.
c)
est un résident permanent au sens du paragraphe 2(1) de la Loi sur
l’immigration et la protection des réfugiés 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 : . . .
(4) Afin de remédier à une situation particulière et
inhabituelle de détresse ou de récompenser des services exceptionnels rendus
au Canada, le gouverneur en conseil a le pouvoir discrétionnaire, malgré les
autres dispositions de la présente loi, d’ordonner au ministre d’attribuer la
citoyenneté à toute personne qu’il désigne; le ministre procède alors sans
délai à l’attribution.
14.(5) Le ministre et le demandeur peuvent
interjeter appel de la décision du juge de la citoyenneté en déposant un avis
d’appel au greffe de la Cour dans les soixante jours suivant la date, selon
le cas :
a)
de l’approbation de la demande;
b)
de la communication, par courrier ou tout autre moyen, de la décision de
rejet.
. . .
16. Nonobstant l’article 28
de la Loi sur les Cours fédérales, la Cour d’appel fédérale n’a pas
compétence pour entendre et juger une demande de révision et d’annulation
d’une décision rendue sous le régime de la présente loi et susceptible
d’appel en vertu de l’article 14.
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Federal
Courts Act, R.S., 1985, c. F-7
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21.
The Federal Court has
exclusive jurisdiction to hear and determine all appeals that may be brought
under subsection 14(5) of the Citizenship Act.
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21.
La Cour fédérale a compétence exclusive en matière d’appels interjetés au
titre du paragraphe 14(5) de la Loi sur la citoyenneté.
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