Date: 20101203
Docket: T-1954-09
Citation: 2010
FC 1213
Ottawa, Ontario, December 3, 2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
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HUMERA KALSOOM
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an appeal under s. 21 of the Federal Courts Act, R.S., 1985, c. F-7,
subsection 14(5) of the Citizenship Act, R.S., 1985 c. C-29 (Act) and
Rule 300(c) of the Federal Courts Rules, SOR/98-106 (Rules) of the
decision of a Citizenship Judge, dated September 24, 2009 (the decision),
refusing the applicant’s application for Canadian Citizenship under section 5
of the Act.
[2]
The application for judicial review shall be granted for the following reasons.
Facts
[3]
The
applicant is a citizen of Pakistan. She was married in August
2001 to Hassan Raza, who is a Canadian citizen. The applicant landed in Canada on June 7,
2002 under a Family Class Sponsorship made by her husband. She became a
permanent resident on this same date.
[4]
The
couple had a daughter in 2003 in Windsor, Ontario where Mr. Raza
was studying towards becoming a Chartered Financial Analyst.
[5]
The
applicant traveled to Pakistan to visit her family
from November 14, 2003 to December 12, 2003 for a total of 28 days. She
then came back to Canada and continued living with her family in Windsor until
approximately the middle of 2005.
[6]
At
that time, Mr. Raza accepted a job in Saudi Arabia and the applicant and her
husband left Canada in late May
2005. Mr. Raza went to Riyadh, whereas the applicant went to Pakistan.
[7]
A
second child was born in Pakistan in August 2005. The
applicant then went to join her husband in Saudi Arabia on September
19, 2005. They have been living there since.
[8]
In
2006, the applicant hired Mr. Enrico Caruso of the law firm Burgio and
Associates for purposes of assisting her in applying for Canadian citizenship. On
May 16, 2006, she applied for citizenship to the Case Processing Centre in Sydney, Nova Scotia.
[9]
The
relevant time period for the calculation of the applicant’s residency for the
purposes of section 5 of the Act begins from May 16, 2006 going back four years
to May 16, 2002.
[10]
The
Citizenship Judge stated that in matters of residency, the onus falls on the
applicant to demonstrate that he or she has resided in the country for three
years of the four years in the relevant period in order to show that he or she
meets the requirement of the Act (Maharatnam v. Canada (Citizenship and
Immigration), [2000] F.C.J. No. 405 (F.C.T.D.) (QL), at para. 5). In this
case, the Citizenship Judge was not persuaded on the evidence that the
applicant established and maintained residence in Canada for the
number of days required.
[11]
In
particular, the Citizenship Judge took issue with the applicant’s credibility
due to inconsistencies in the stated number of days that the applicant had been
in the country during the period in question. For example, the Judge referred
to the applicant’s permanent residence determination meeting in Saudi Arabia on January
5, 2009, in which the applicant acknowledged that she had spent a total of 508
days in Canada since
landing on June 7, 2002, and found that this statement was contrary to what she
had declared on her application for citizenship.
[12]
In
coming to her conclusion, the Citizenship Judge also referred to a letter from
the applicant’s counsel in which they admit that the applicant was only
physically present in Canada for 803 days during the relevant time
frame.
[13]
Questions
of facts are reviewable on a standard of reasonableness (Canada (Citizenship
and Immigration) v. Tarfi, 2009 FC 188, [2009] F.C.J. No. 244 (QL) at para.
8), questions of procedural fairness on a standard of correctness (Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47).
[14]
In
the case at bar, the Citizenship Judge referred to another applicant “Abou el
Houda” instead of “Humera Kalsoom” when she concluded that she was not
satisfied that the residency requirements had been met. This raises questions
as to the attentiveness of the Citizenship Judge in making her decision.
[15]
The
Citizenship Judge had problems with the credibility of the declarations made in
the application, the documents submitted and the applicant's testimony at
hearings. She decided that she would not make a favourable recommendation under
subsections 5(3) and (4) of the Act.
[16]
The
Citizenship Judge applied the strict test of residency which in itself is not a
reviewable error.
[17]
The
defendant concedes that the shortfall in the number of days is not 49 as stated
by the Citizenship Judge (para. 7 of the decision) but 38 as acknowledged by
the applicant.
[18]
The
Citizenship Judge was still not satisfied that the 49 days mentioned was still
accurate.
[19]
She
also mentioned in her decision that the applicant had declared 1,428 days of
possible physical presence and 231 days of absence during the relevant time
frame. Nowhere in her application did the applicant declare 1,428 days; she
stated 1,410 days.
[20]
Although,
the applicant had mentioned 231 days of absence, she corrected this statement
in a letter of March 30, 2009. This letter is not mentioned in the decision.
[21]
If
this document had been considered or analyzed, would the Citizenship Judge have
been in a position to reverse its findings on credibility and possibly make a
favourable recommendation?
[22]
The
Citizenship Judge made numerous references to a period of 508 days in Canada mentioned by
the applicant in her permanent residency application. She then concluded that
this was contrary to the applicant's application for citizenship. In fact, the
reference period to become a permanent resident is different than to become a
citizen of Canada. There was
no error by the applicant when she declared in her application for residency
that she had spent 508 days in Canada.
[23]
Again,
if the Citizenship Judge had properly considered the applicant's statements in
both applications, maybe she may not have had credibility concerns.
[24]
Under
the circumstances, the Court prefers to return the matter for reconsideration.
JUDGMENT
THIS COURT
ORDERS that this application for appeal be
allowed. The matter is remitted back for reconsideration by a different
Citizenship Judge.
“Michel
Beaudry”
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