Date: 20090304
Docket: T-1150-08
Citation: 2009
FC 222
Ottawa, Ontario, March
4, 2009
PRESENT: The Honourable
Mr. Justice Orville Frenette
BETWEEN:
EI MOUATASSIM BELGHAZI
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an appeal pursuant to subsection 14(5) of the Citizenship Act, R.S.C.
1985, c. C-29, (the Act) against the decision rendered on May 30, 2008, by Citizenship
Judge Gordana Caricevic‑Rakovich, refusing the application for Canadian
citizenship submitted by the applicant because the evidence he presented did
not demonstrate that he met the residency requirements under paragraph 5(1)(c)
of the Act.
Facts
[2]
The
applicant was born on March 6, 1969, in Morocco. He arrived
in Canada on April 12, 2001,
with his wife and his three children. On August 23, 2004, he filed his
application for Canadian citizenship.
[3]
The
applicable reference period of four years or 1,460 days preceding his
application for citizenship ran from August 23, 2000, to August 23, 2004 (the
reference period).
[4]
The
applicant says that he was absent from Canada for a total
of 90 days following his arrival in Canada on April 12, 2001. The
90 days consisted of two trips to Morocco: a 77-day trip to visit
his family and a 13-day trip for vacation.
[5]
In
November 2004, he decided to return to France to complete
his doctorate in business administration and economics. He brought his wife and
children with him to France but, at the end of 2004, she and the children
returned to Morocco to live.
[6]
The
applicant had acquired a house in Notre-Dame-de-la-Merci, in the province of Quebec, in 1998.
He contends that they were established in the local community between 2001 and
2004.
[7]
On
February 5, 2008, the applicant appeared before the citizenship judge after
being invited to an interview.
[8]
At
paragraph 45 of his affidavit dated August 22, 2008, signed at Rabat, Morocco, the
applicant wrote:
[translation]
At the interview, I did not understand
the substance and the scope of some of the questions the citizenship judge
asked; she was looking for certain information that was very specific to the
questions and I had specific answers, but they slipped my mind because of
stress.
[9]
The
Canadian notices of assessment for 2001, 2002, 2003 and 2004 show that the
applicant had no taxable income in Canada during those years.
Impugned decision
[10] In her
decision dated May 30, 2008, the citizenship judge rejected the applicant’s
application for citizenship. She explained that between April 12, 2001, and August
23, 2004, the applicant had accumulated 1,138 days of physical presence in Canada; he had
spent 90 days outside Canada during the same period. She analyzed the
evidence presented by the applicant, i.e., the acquisition of a house, his tax
returns, bank statements and telephone bills. She considered the fact that,
despite the applicant’s submissions that he was an economist/independent
consultant, he had not provided any tangible evidence of his work activities
during his stay in Canada.
[11] The bank account
that was opened in the name of the applicant and one Jean Lavoie shows few transactions.
The telephone bill statements indicate long periods without any telephone communications.
The citizenship judge also considered the lack of taxable income during the
four years involved.
[12] In her
decision, the judge concluded that the applicant had not met the residence
conditions in Canada, as required
under paragraph 5(1)(c) of the Act.
Standard of review
[13] The
applicable standard of review for decisions of a citizenship judge concerning
an applicant’s residence, which is a question of fact or mixed law and fact, is
reasonableness (Chen v. Minister of Citizenship and Immigration, 2006 FC
85; Zhao v. Minister of Citizenship and Immigration, 2006 FC 1536; Pourzand
v. Minister of Citizenship and Immigration, 2008 FC 395, at paragraph 19).
[14] A citizenship
judge’s assessment on the issue of adequate knowledge of Canada is a purely factual
question for which the Court should show considerable deference (Arif v. Minister
of Citizenship and Immigration, 2007 FC 557; Huang v. Minister of
Citizenship and Immigration, 2005 FC 861; Wang v. Minister of
Citizenship and Immigration, 2008 FC 391; So v. Minister of Citizenship
and Immigration, 2001 FCT 733).
[15] The
applicant’s explanation regarding his answers is not convincing.
Applicable legislation
[16] Paragraph
5(1)(c) of the Act reads as follows:
|
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:
(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;
|
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:
(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;
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[17] Section 15 of
the Citizenship Regulations, 1993, SOR/93-246, reads as follows:
|
15.
The criteria for determining whether a person has an adequate knowledge of
Canada and of the responsibilities and privileges of citizenship are that the
person has a general understanding of and can answer correctly simple oral
questions based on the information contained in self-instructional materials
approved by the Minister and presented to applicants for the grant of
citizenship respecting
(a)
the right to vote in federal, provincial and municipal elections and the
right to run for elected office;
(b)
enumerating and voting procedures related to elections; and
(c)
one of the following topics, to be chosen by the person questioning the
applicant, namely,
(i)
the chief characteristics of Canadian social and cultural history,
(ii)
the chief characteristics of Canadian political history,
(iii)
the chief characteristics of Canadian physical and political geography, or
(iv)
the responsibilities and privileges of citizenship, other than those referred
to in paragraphs (a) and (b).
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15. Une personne possède une
connaissance suffisante du Canada et des responsabilités et privilèges
attachés à la citoyenneté si elle comprend de façon générale des questions
orales simples basées sur les renseignements figurant dans des documents
d’auto-apprentissage approuvés par le ministre et présentés aux aspirants à
la citoyenneté et si elle peut y répondre correctement. Les questions portent
sur:
a) le droit de vote aux
élections fédérales, provinciales et municipales et le droit de se porter
candidat à une charge élective;
b) les formalités liées au
recensement électoral et au vote;
c) l’un des sujets suivants,
à la discrétion de la personne chargée d’interroger the applicant:
(i)
les principales caractéristiques de l’histoire sociale et culturelle du
Canada,
(ii)
les principales caractéristiques de l’histoire politique du Canada,
(iii)
les principales caractéristiques de la géographie physique et politique du
Canada,
(iv)
les responsabilités et privilèges attachés à la citoyenneté autres que ceux
visés aux alinéas a) et b).
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[18] The questions
in paragraphs 15(a) and (b) are mandatory (Wang, above, at
paragraph 9).
[19] The onus is
on the applicant to prove, on a balance of probabilities, that the conditions
required by the Act have been satisfied (Maharatnam v. Minister of
Citizenship and Immigration, [2000] F.C.J. No. 405 (T.D.) (QL); Malevsky
v. Minister of Citizenship and Immigration, 2002 FCT 1148).
[20] Residence is
to be given its ordinary meaning (In re Citizenship Act and in re Papadogiorgakis,
[1978] 2 F.C. 208; Koo (Re), [1993] 1 F.C. 286).
[21] It is open to
the citizenship judge to choose one of the methods suggested in the jurisprudence
to determine “residence” and if he or she applies one of those methods in each case,
his or her decision will be considered valid (Lam v. Canada (M.C.I.)
(1999), 164 F.T.R. 177, at paragraph 14).
[22] According to
the jurisprudence, if an applicant establishes that he or she was physically in
Canada for 1,095 days during the reference period, the applicant has fulfilled
this requirement of the Act (So, above, at paragraph 32).
[23] In this case,
the judge chose the method suggested in Pourghasemi (Re), [1993] F.C.J. No. 232
(T.D.) (QL).
Analysis
[24] The citizenship
judge noted that the applicant was in Canada as a permanent resident
beginning on April 12, 2001. He submitted an application for citizenship on
August 23, 2004; thus, the applicable reference period of four years preceding
his application ran from August 23, 2000, to August 23, 2004.
[25] The applicant
states that he resided in Canada for 1,138 days during the reference period
(excluding the 90 days during this period when, he admits, he was outside Canada).
[26] The applicant
challenges this negative decision on the following grounds.
[27] The judge took
it for granted that he had accumulated 1,138 days as a permanent resident
during the reference period and therefore met the requirements of the Act. The
respondent, for his part, replies that if the decision seems ambiguous about
the issue of 1,138
days, it was only an introductory ambivalent comment and the subsequent reasons
clearly demonstrated the ratio decidendi of the decision.
[28] The judge’s
notes (which are legally part of the decision), clearly show that she had not
been persuaded that the applicant had really been present in Canada for 1,095 days
during the reference period. She gave the following four reasons as the basis
for her decision.
[29] First, the
applicant did not provide the court with his passport, which would have showed the
dates when he left and entered Canada. The applicant responds that he had to
leave his passport with the Moroccan authorities. However, he did not explain
why he had been unable to obtain a copy and produce it to the court.
[30] Second, the
bank account shows long periods of inactivity (up to six months), which suggests
that he could have been outside Canada during those periods. He
held this bank account jointly with Jean Lavoie, a real estate broker, who did
not have a power of attorney to carry out transactions—an explanation that is
difficult to understand.
[31] Third, the
telephone bills show long periods with no telephone communications,
corresponding grosso modo to the periods when the bank account was
inactive. The applicant maintains that during those periods, he was busy
renovating his house and produced bills and receipts from those activities.
However, these documents do not prove that the applicant was in Canada at the time
indicated thereon.
[32] Last, the
judge pointed out that the applicant did not provide any evidence about his
work or consultation activities that he carried on during his stay in Canada. In his
affidavit, the applicant tried to explain his occupations but did not really
succeed in changing this ground.
[33] Finally, the
respondent demonstrated that the applicant’s spouse had purchased plane tickets
on December 24, 2003, which does not coincide with the periods of absence from Canada that the
applicant identified, i.e. from September 1 to November 18, 2003, and from
August 1 to 14, 2004. The evidence also shows that the applicant spent only a
few months in Canada from August 24, 2004,
to 2008.
Conclusion
[34] Given the
evidence in the record, the citizenship judge was correct in believing that the
applicant had not presented sufficient evidence to establish his residence in Canada
during the reference period and that, consequently, he did not meet the
requirements of paragraph 5(1)(c) of the Act. This finding is not
unreasonable. It is within the range of inferences that the judge could draw
from the facts and the Act, as stated by the Supreme Court of Canada in Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190.
[35] For these
reasons, the Court orders that the applicant’s appeal is dismissed.
JUDGMENT
The appeal of the decision
rendered on May 30, 2008, by Citizenship Judge Gordana Caricevic-Rakovich,
refusing the applicant’s application for Canadian citizenship because the
evidence he produced did not establish that he met the requirements of
paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29,
is dismissed.
“Orville
Frenette”
Certified
true translation
Mary
Jo Egan, LLB
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