Date: 20120224
Docket: T-785-11
Citation: 2012 FC 252
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, February 24, 2012
PRESENT: The Honourable
Mr. Justice Scott
BETWEEN:
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FATMIR BUSHI
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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
I. Introduction
[1]
This
is an appeal by Fatmir Bushi (Mr. Bushi), pursuant to subsection 14(5) of
the Citizenship Act, RSC 1985, c C-29 (Act), of the
decision by Citizenship Judge Renée Giroux denying his application for
citizenship.
[2]
For
the following reasons, this appeal is dismissed.
II. Facts
[3]
Mr.
Bushi is of Albanian origin.
[4]
He
was admitted to Canada on September 2, 1998.
[5]
On
November 2, 1999, he obtained his permanent resident status.
[6]
Mr.
Bushi worked as a landscaper for the company Les aménagements paysagers
François Proulx each summer starting in 2000 and states that he received
employment insurance benefits for the rest of the year.
[7]
On
February 26, 2008, Mr. Bushi filed his application for citizenship. His
reference period is therefore from February 26, 2004, to February 26, 2008.
[8]
On
November 4, 2009, a citizenship officer gave Mr. Bushi a residence
questionnaire asking him to provide the information required to establish his
residence in Canada.
[9]
On
November 26, 2009, Mr. Bushi submitted the questionnaire and documents
supporting his application.
[10]
On
January 25, 2011, the citizenship judge denied Mr. Bushi’s application for citizenship
on the ground that the evidence in the record was insufficient to establish Mr.
Bushi’s physical presence in Canada during the reference period.
III. Legislation
[11]
Subsection
5(1) of the Act reads as follows:
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Grant
of citizenship
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Attribution
de la citoyenneté
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5. (1) The Minister shall grant
citizenship to any person who
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5. (1) Le ministre attribue la
citoyenneté à toute personne qui, à la fois :
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(a) makes application for
citizenship;
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a) en fait la demande;
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(b) is eighteen years of
age or over;
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b) est âgée d’au moins
dix-huit ans;
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(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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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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(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
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(i) un demi-jour pour chaque jour de
résidence au Canada avant son admission à titre de résident permanent,
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(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;
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(ii) un jour pour chaque jour de résidence au Canada
après son admission à titre de résident permanent;
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(d) has an adequate
knowledge of one of the official languages of Canada;
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d) a une connaissance
suffisante de l’une des langues officielles du Canada;
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(e) has an adequate
knowledge of Canada and of the responsibilities and privileges of
citizenship; and
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e) a une connaissance
suffisante du Canada et des responsabilités et avantages conférés par la
citoyenneté;
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(f) is not under a
removal order and is not the subject of a declaration by the Governor in
Council made pursuant to section 20.
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f) n’est pas sous le
coup d’une mesure de renvoi et n’est pas visée par une déclaration du
gouverneur en conseil faite en application de l’article 20.
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IV. Issue
and standard of review
A. Issue
·
Did
the citizenship judge err by finding that the applicant did not meet the
requirements set out in paragraph 5(1)(c) of the Act?
B. Standard
of review
[12]
The
review of a citizenship judge’s determination of whether an applicant meets the
residency requirements under the Act is a question of mixed fact and law (see Chowdhury
v Canada (Minister of Citizenship and Immigration), 2009 FC 709, at
paragraphs 24 to 28; see also Canada (Minister of Citizenship and
Immigration) v Zhou, 2008 FC 939 at paragraph 7).
[13]
The
standard of review applicable in this case is reasonableness. “A court conducting a review for reasonableness inquires
into the qualities that make a decision reasonable, referring both to the
process of articulating the reasons and to outcomes. In judicial review,
reasonableness is concerned mostly with the existence of justification, transparency
and intelligibility within the decision-making process. But it is also
concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.” (see
Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 47;
see also Canada (Citizenship
and Immigration) v Khosa,
2009 SCC 12 at paragraph 59).
V. Position
of the parties
A. Position
of Mr. Bushi
[14]
Mr.
Bushi maintains that the citizenship judge erred by finding that he does not
meet the requirements of the Act.
[15]
Mr.
Bushi alleges that he has difficulty fully understanding French, which
prevented him from adequately answering the citizenship judge’s questions at
the hearing on January 25, 2011.
[16]
He
also contends that the citizenship judge did not consider the following
evidence in the record: his income tax returns for 2006 and 2008 and a letter
from his employer, François Proulx, from Aménagements paysagers François
Proulx.
[17]
Mr.
Bushi claims that he met all of the requirements of the Act. The citizenship
judge’s failure to take into account the evidence in the record constitutes,
according to him, an error that warrants the intervention of the Court.
B. Position of
the respondent
[18]
The
respondent emphasizes that the burden of proof rests with Mr. Bushi. He bears
the onus of establishing, on a balance of probabilities, that he meets all of
the requirements of the Act (see Abbas v Canada (Minister of
Citizenship and Immigration), 2011 FC 145 at paragraph 8).
[19]
The
respondent maintains that the evidence submitted by Mr. Bushi does not
establish his residence in Canada.
[20]
The
respondent points out that the Court has recognized, on several occasions, that
income tax returns are passive indicators of residence that do not establish
physical presence in the country (see Singh v Canada (Minister
of Citizenship and Immigration), 2011 FC 490 at paragraphs 32-33). Mr.
Bushi’s income tax returns do not establish a continued presence in Canada for
the full period alleged.
[21]
Mr.
Bushi did not submit any documents to prove his residence in Canada for the
years 2004, 2005 and 2007. The respondent alleges that the low probative value
of the evidence in the record did not make it possible for the citizenship
judge to find that Mr. Bushi meets the minimum requirement of the Act.
[22]
Furthermore,
Mr. Bushi did not establish how his difficulties with the French language
prevented him from submitting the evidence required to establish his physical
presence in the country during the reference period or explain how this
difficulty put him at a disadvantage at the hearing.
[23]
At
the hearing, counsel for the applicant claimed that the citizenship judge was
biased because she asked Mr. Bushi why he does not work in the winter. Counsel
for the respondent objected because that argument was not raised in the
applicant’s memorandum. The Court upheld the respondent’s objection because the
rules of the Court are clear on this point.
VII. Analysis
·
Did
the citizenship judge err by finding that the applicant did not meet the
requirements set out in paragraph 5(1)(c) of the Act?
[24]
The
Court dismisses Mr. Bushi’s argument with respect to his limited knowledge of
French because he did not explain precisely how that difficulty prevented him
from submitting the documentation required to meet the requirements of the Act.
[25]
Second,
it is clear from reading the record that Mr. Bushi failed to meet the criteria
set out in the Act because he did not submit sufficient evidence in support of
his application for citizenship. On the basis of the evidence in the record, it
is impossible to find that the applicant met the requirements of the Act.
[26]
Regardless
of whether the Court applies the strict physical presence test stated by
Justice Muldoon in Pourghasemi (Re) (1993), 62 FTR 122, or the centralized
residence in Canada test by responding to the six questions specified by
Justice Reed in Koo (Re), [1993] 1 FC 286, 59 FTR 27, in both
cases, Mr. Bushi does not meet the necessary requirements.
[27]
Even
if the citizenship judge accepts all of the evidence submitted, Mr. Bushi still
does not meet the requirements set out in paragraph 5(1)(c) of the Act.
The decision by the citizenship judge is most reasonable. Canadian citizenship
provides many privileges. The citizenship judge has the right to expect that an
applicant will at least make an effort to establish his or her residence during
the reference period. This was not the case here.
VIII. Conclusion
[28]
This
appeal application is dismissed, without costs.
JUDGMENT
THE COURT
DISMISSES
1.
The
appeal;
2.
Without
costs.
“André
F.J. Scott”
Certified
true translation
Janine
Anderson, Translator
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