Date: 20090729
Docket: T-1365-08
Citation: 2009 FC 777
Ottawa, Ontario, July 29,
2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Applicant
and
FABIO
STURABOTTI
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an appeal brought by the Applicant under section 21 of the Federal Court
Act, R.S.,
1985, c. F-7 (Federal Act), subsection 14(5) of the Citizenship Act, R.S.,
1985, c. C-29 (Act) and Rule 300(c) of the Federal Court Rules, SOR/98-106 (Rules) of
the decision of a Citizenship Judge (Judge), dated July 3, 2008 (Decision),
approving the Respondent’s application for Canadian Citizenship.
BACKGROUND
[2]
The
Respondent is a 33-year-old citizen of Italy who first
came to live in Canada in August 1999. His intended occupation is as a pilot.
[3]
On
April 25, 2000, the Respondent was landed in Canada and, at that
time, was married to Jennifer Croce, who sponsored his application for
permanent residence. By the time he filed his citizenship application in 2006,
the Respondent was divorced.
[4]
The
Respondent’s relevant 4-year period preceding his citizenship application date
is July 15, 2002 to July 15, 2006. He has the following reported absences from
Canada:
20/12/05 to
15/07/06 Chiavari, Italy Education-Upgrade Courses 208
03/11/03 to
21/05/04 Chiavari, Italy Education-Upgrade Courses 171
01/03/03 to
30/04/03 Chiavari, Italy Vacation 60
15/07/02 to
31/07/02 Chiavari, Italy Vacation 17
[5]
Even
though he was already a permanent resident, the Respondent applied for a visa
(temporary resident permit) to re-enter Canada, which was
issued to him on December 16, 2003. The Respondent needed the visa to travel
back to Canada on May 21,
2004 because he had not obtained his Permanent Resident card prior to the
established December 2003 deadline. The Respondent’s Permanent Resident Card
would have been issued to him in April of 2004, which means he could not have
picked it up until after his return from Italy on May 21,
2004. Permanent Residence cards are now required by commercial carriers for
travel since December 31, 2003.
[6]
On
July 15, 2006, the Respondent signed an amended version of his citizenship
application in Chiavari, Italy and it was received by the CIC Cases
Processing Centre in Sydney on August 1, 2006. His original
application was returned because it was “stale-dated” (received more than 90
days after it was signed/dated).
[7]
On
December 12, 2006, the Respondent’s citizenship application was referred to a Citizenship
Judge for a hearing.
[8]
On
January 24, 2008, the Respondent was served with his “Final Notice to Appear”
(on February 18, 2008). However, on February 12, 2008, jurisdiction over the
application was transferred to a different Judge and on June 18, 2008, the
Respondent appeared before Judge Allaire for his hearing and provided an
attestation.
[9]
The
Respondent, since his arrival in Canada, has been renting a
room out of a church house for $250-300 per month. He indicated that he does
not own any property in Canada. His social ties to Canada are his
involvement as a volunteer pastor’s helper at the church where he resides.
[10]
The
Respondent has no relatives in Canada and his parents and brother reside in Italy. With the
exception of one year of employment at the Island Air Flight School, the Respondent
has either been unemployed or in training since his arrival in Canada. He was also
unemployed before becoming a permanent resident. There are no school letters or
records or income tax forms for the Respondent in the Certified Tribunal
Record.
[11]
The
Respondent submitted four bank statements from Canada Trust which show balances
between $1000 and $2058.
[12]
From
November 3, 2003 until July 15, 2006, the Respondent completed his revised
citizenship application which indicated he was absent from Canada for a total
of 379 days, while he was “upgrading” his courses. The Respondent indicated
that he was taking an airline pilot type-rating course and line training
through an Italian type-rating training organization named Ocean Airlines,
because, due to his low flight time and the particular structure of the pilot
job, he was not able to find an organization in Canada.
[13]
During
the Respondent’s absences, his driver’s licence and provincial health card
expired.
[14]
The
Applicant notes that the Citizenship Judge made an error in his calculation and
that the shortfall of the Respondent was 91 days as opposed to the 95 days
noted by the Judge in his Decision.
DECISION UNDER REVIEW
[15]
The
Judge noted that the Respondent was short 95 days of the required 1095.
However, the Judge found that the absences were due to the Respondent’s
attending school to upgrade his qualifications and granted his citizenship
application.
ISSUES
[16]
The
Applicant submits the following issues for review on this application:
a.
Did
the Judge err in approving the Respondent’s citizenship application despite his
falling short of the residency requirement set out in paragraph 5(1)(c)
of the Act? In particular, the Applicant takes the position that the Decision
was not reasonable because the Judge:
i.
Failed
to clearly identify and apply an appropriate test with respect to the residency
requirement;
ii.
Failed
to provide adequate reasons in light of the record before him;
iii.
Ignored
a pattern of absences and other factors that were relevant in assessing the
quality of the Respondent’s connection to Canada; and
iv.
Abdicated
his jurisdiction to assess the evidence before him regarding whether the Respondent
had established and maintained residency.
STATUTORY PROVISIONS
[17]
The
following provisions of the Act are applicable to this application:
|
Grant of citizenship
5. (1) The Minister shall grant
citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(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;
(d) has an adequate knowledge of one of the official
languages of Canada;
(e) has an adequate knowledge of Canada and of the
responsibilities and privileges of citizenship; and
(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.
|
Attribution de la citoyenneté
5. (1) Le ministre attribue la
citoyenneté à toute personne qui, à la fois :
a) en fait la
demande;
b) est âgée
d’au moins dix-huit ans;
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;
d) a une
connaissance suffisante de l’une des langues officielles du Canada;
e) a une
connaissance suffisante du Canada et des responsabilités et avantages
conférés par la citoyenneté;
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.
|
[18]
The
following provisions of the Rules are applicable to this application:
|
Application
300. This Part applies to
(a)
applications for judicial review of administrative action, including
applications under section 18.1 or 28 of the Act, unless the Court directs
under subsection 18.4(2) of the Act that the application be treated and
proceeded with as an action;
(b)
proceedings required or permitted by or under an Act of Parliament to be
brought by application, motion, originating notice of motion, originating
summons or petition or to be determined in a summary way, other than
applications under subsection 33(1) of the Marine Liability Act;
(c)
appeals under subsection 14(5) of the Citizenship Act;
(d)
appeals under section 56 of the Trade-marks Act;
(e)
references from a tribunal under rule 320;
(f)
requests under the Commercial Arbitration Code brought pursuant to subsection
324(1);
(g)
proceedings transferred to the Court under subsection 3(3) or 5(3) of the Divorce
Act; and
(h)
applications for registration, recognition or enforcement of a foreign
judgment brought under rules 327 to 334.
|
Application
300. La présente partie s’applique:
a) aux
demandes de contrôle judiciaire de mesures administratives, y compris les
demandes présentées en vertu des articles 18.1 ou 28 de la Loi, à moins que
la Cour n’ordonne, en vertu du paragraphe 18.4(2) de la Loi, de les instruire
comme des actions;
b) aux instances engagées sous le
régime d’une loi fédérale ou d’un texte d’application de celle-ci qui en
prévoit ou en autorise l’introduction par voie de demande, de requête, d’avis
de requête introductif d’instance, d’assignation introductive d’instance ou
de pétition, ou le règlement par procédure sommaire, à l’exception des
demandes faites en vertu du paragraphe 33(1) de la Loi sur la
responsabilité en matière maritime;
c) aux appels interjetés en vertu du
paragraphe 14(5) de la Loi sur la citoyenneté;
d) aux appels interjetés en vertu de
l’article 56 de la Loi sur les marques de commerce;
e) aux renvois d’un office fédéral en
vertu de la règle 320;
f) aux demandes présentées en vertu du
Code d’arbitrage commercial qui sont visées au paragraphe 324(1);
g) aux actions renvoyées à la Cour en
vertu des paragraphes 3(3) ou 5(3) de la Loi sur le divorce;
h) aux demandes pour l’enregistrement,
la reconnaissance ou l’exécution d’un jugement étranger visées aux règles 327
à 334.
|
STANDARD OF REVIEW
[19]
The
Applicant submits that the question of whether a person has met the residency
requirements under the Act is a question of mixed law and fact, so that the
appropriate standard of review is reasonableness: Dunsmuir v. New Brunswick 2008
SCC 9 at paragraphs 44, 47, 48 and 53; Canada (Minister of Citizenship and
Immigration) v. Mueller 2005 FC 227 at paragraph 4; Canada (Minister of
Citizenship and Immigration) v. Wall 2005 FC 110 at paragraph 21; Zeng
v. Canada (Minister of Citizenship and Immigration) 2004 FC 1752 at
paragraph 7-10; Chen v. Canada (Minister of Citizenship and Immigration)
2004 FC 1693 at paragraph 5l Rasaei v. Canada (Minister of Citizenship and
Immigration) 2004 FC 1688 at paragraph 4 and Gunnarsson v. Canada
(Minister of Citizenship and Immigration) 2004 FC 1592 at paragraphs 18-22.
[20]
The
Court in Haj-Kamali v. Canada (Minister of
Citizenship and Immigration) 2007 FC 102 (Haj-Kamali) provided
the following guidance at paragraphs 7-8:
7 Both
parties accept that the standard of review for pure factual findings of the Citizenship Court (e.g. the duration of
Mr. Haj-Kamali's absences from Canada) is patent unreasonableness. This is in accordance with a
number of authorities from this Court and I would specifically adopt the
analysis by Justice Richard Mosley in Huang v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1078,
2005 FC 861, where
he held in paragraph 10:
[10] However, for purely factual findings the respondent
submits the standard should be patent unreasonableness. The Citizenship Judge
as the finder of fact has access to the original documents and an opportunity
to discuss the relevant facts with the applicant. On citizenship appeals, this
Court is a Court of appeal and should not disturb the findings unless they are
patently unreasonable or demonstrate palpable and overriding error: Housen v.
Nikolaisen, [2002] 2 S.C.R. 235.
8 The
application of the facts to the law concerning residency under the Act is, of
course, a matter of mixed fact and law for which the standard of review is
reasonableness simpliciter. Here I adopt the analysis of Justice Mosley
in Zeng v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 2134,
2004 FC 1752 where
he held at paragraphs 9 and 10…
[21]
In Dunsmuir, the Supreme
Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review”: Dunsmuir at paragraph 44.
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[22]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[23]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to these issues to be reasonableness, with the exception of the
procedural fairness issue and the questions of law and jurisdiction. When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
[24]
Questions
of law and jurisdiction must be considered on a standard of correctness: Buschau
v. Canada (Attorney General) 2008 FC 1023 at paragraph 45.
[25]
The
issue raised concerning the adequacy of reasons is a question of procedural
fairness and natural justice reviewable on a standard of correctness: Andryanov
v. Canada (Minister of Citizenship and Immigration) 2007 FC 186 at
paragraph 15; Jang v. Canada (Minister of Citizenship and Immigration) 2004
FC 486 at paragraph 9 and Adu v. Canada (Minister of Citizenship and Immigration)
2005 FC 565 at paragraph 9.
ARGUMENTS
The Applicant
[26]
The
Applicant submits that the Judge committed a reviewable error in failing to
identify which test, if any, he used to determine whether the Respondent met
the residency requirement for citizenship. Blending different tests together is
also a reviewable error. See: Gao v. Canada (Minister of Citizenship and
Immigration) 2003 FCT 605 at paragraph 23; Hsu v. Canada (Minister of
Citizenship and Immigration) 2001 FCT 579 at paragraphs 4 to 7 and Lam
v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410
(F.C.T.D.).
[27]
The
Applicant states that the Judge’s reasons and analysis in respect of
establishing/maintaining residence are wholly inadequate. The reasons given do
not sufficiently explain on what grounds the application was approved, or why
the Judge decided as he did. The Applicant relies upon Lai v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1361 (F.C.T.D.) at paragraphs
9 to 12, where the Federal Court held that it was not enough for the Judge to
merely list the evidence considered. The Applicant notes that the Judge in this
case did not even list the evidence considered and this calls into question
whether the Respondent had truly established/maintained residence in Canada, no matter which test
was applied. See: Eltom v. Canada (Minister of Citizenship and Immigration) 2005
FC 1555 at paragraphs 28 to 33 and Abdollahi-Ghane v. Canada (Attorney General), [2004] F.C.J. No. 930
(F.C.) at paragraphs 29 to 33.
[28]
The
Applicant points out that the Judge’s reasons for approving the Respondent’s
application, despite his shortfall in the number of days required, consist of
only two handwritten lines. There are no other notes or analysis from the
Judge. The Judge did not refer to anything except the Respondent’s assertion
that he had been upgrading his skills. The Applicant finds this questionable,
as there was absolutely no evidence to substantiate such a claim, other than
the Respondent’s handwritten notes in the Residence Questionnaire. There was
also nothing to establish that his training was not available in Canada, or that it was not available
through Ocean Airlines, or that the Respondent was even registered with Ocean
Airlines.
[29]
The
Applicant submits that the Judge completely abdicated his jurisdiction to
assess the evidence with respect to the residence requirement. The Decision fails
to deal with material elements of the evidence, or the lack thereof, that may
have resulted in the application not being approved.
[30]
The
Applicant reminds the Court that the onus is on a citizenship applicant to
establish with credible evidence that they meet the residence requirement of
the Act. In fact, the Residence Questionnaire completed by the Respondent
provides clear instructions as to the type of evidence/documentation that he
was expected to submit in support of his application. Applicants are
specifically told to provide “documentary evidence in support of your
statements.” See: Zheng v. Canada (Minister of Citizenship and
Immigration) 2007 FC 1311; Paez v. Canada (Minister of
Citizenship and Immigration) 2008 FC 204; Kong (Re), [1999]
F.C.J. No. 665 (F.C.T.D.) and Koo (Re), [1993] 1 F.C. 286 (F.C.T.D.).
[31]
The
Applicant says it is clear that the Respondent has not met his onus in this
case. Even if this was all the information he could provide, the evidence suggests
that his ties to Canada are weak. Therefore, it was unreasonable for the Judge
to approve the Respondent’s application. The Applicant notes that it would have
been reasonable for the Judge to inquire about and mention the visas and
passport stamps relating to the People’s Republic of China (PRC) and Hong Kong,
given that the Respondent does not specifically refer to business or study
there. A March 13, 2006 entry and March 18, 2006 exit on page 31 of the
Respondent’s passport indicates he traveled as a staff member or crew to the
PRC/Hong Kong during a time when he reports he was in Italy upgrading his skills.
The Applicant alleges that this raises the possibility of material omission or
misrepresentation by the Respondent. The Citizenship Judge should have
specifically dealt with this aspect of the record, and his failure to do so
constitutes a reviewable error.
[32]
The
Applicant cites and relies upon Canada (Minister of Citizenship and Immigration) v. Dhaliwal 2008 FC 797 (F.C.T.D.)
at paragraph 26:
26 I
agree with the Applicant that there is without a doubt a clear message within
the Act of
Parliament's intention to discourage misrepresentation. The privilege of
acquiring Canadian citizenship is just that: a privilege. One must be truthful
in their application for such a privilege. Moreover, misrepresentation by an
applicant for citizenship puts into question their credibility and has the
potential to impact the weight given to their evidence submitted in support of
their application. Given the Citizenship Judge's dependency on the Respondent's
written and oral evidence and the lack of documentary evidence, the Citizenship
Judge erred in failing to discuss this factor. The failure to explain how the
Respondent's misrepresentation impacted the decision renders the Citizenship
Judge's decision unreasonable. He also failed to assess the Respondent's
credibility especially considering the misrepresentation made by him. This
decision is unreasonable.
Respondent
[33]
The
Respondent has not filed any written submissions on this application and no one
appeared at the hearing on his behalf.
ANALYSIS
[34]
The
Respondent has filed no written submissions in this matter and no one appeared
on his behalf at the hearing in Toronto on July 7, 2009.
[35]
I
have reviewed the Decision and the Applicant’s submissions. I agree with the
Applicant’s submissions on reviewable error.
[36]
I
have also reviewed the record and the materials submitted by the Respondent in
his citizenship application. It is clear to me that, whichever formulation of
the residency test is used in this case, the evidentiary base cannot support a
finding that the Respondent meets the residency requirement in paragraph 5(1)(c)
of the Citizenship Act. Consequently, I see no point in returning this
matter for reconsideration by a different judge.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. The appeal is
granted. The Decision of the citizenship judge is quashed and the application
for citizenship is refused.
“James
Russell”
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