Date:
20130625
Dockets: T-946-12
T-947-12
Citation:
2013 FC 705
Docket:
T-946-12
BETWEEN:
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DRAGOS OVIDIU GAVRILUTA
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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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Docket:
T-947-12
AND BETWEEN:
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CLAUDIA GAVRILUTA
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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
HENEGHAN
J.
I.
Introduction
[1]
Mr.
Dragos Ovidiu Gavriluta and his wife Mrs. Claudia Gavriluta (collectively “the
Applicants”) appeal from a decision of Citizenship Judge Aris Babikian (the
“Citizenship Judge”) denying their applications for citizenship. The appeal is
brought pursuant to subsection 14(5) of the Citizenship Act, R.S.C.,
1985, c. C-29 (the “Act”). The applications for citizenship were denied on the
basis that the Citizenship Judge was not satisfied that the Applicants had
presented credible evidence to show that they had satisfied the residency
requirements of the Act.
[2]
Pursuant
to section 21 of the Federal Courts Act, R.S.C., 1985, c. F-7, appeals
under the Act proceed as applications governed by Part 5 of the Federal
Courts Rules, SOR/98-106. The Applicants commenced individual applications
but in view of the overlap of the facts and arguments in these two appeals, I
will review the background facts of both applications together.
II. Background
[3]
The
Applicants are citizens of Romania.
[4]
The
male Applicant claims that he began employment with Clariant Corporation in Minneapolis, Minnesota in August 2001. He says that he first entered Canada in November 2004, upon a work permit, for a business trip. He also claims that he
was promoted to General Manager at Clariant (Canada) Inc. in January 2005. On
August 14, 2005, he became a “permanent resident” of Canada within the meaning
of that term in the Immigration and Refugee Protection Act, S.C.
2001, c. 27. His wife entered Canada in February 2005 and became a permanent
resident on August 17, 2005.
[5]
On
December 29, 2008, a “non-computer based entry” was made in the Field Operation
Support System (“FOSS”) as follows:
Received call from Officer Smith, Customs &
Border Control at Windsor Ambassador Bridge stating that she is currently
interviewing the subject who is re-entering the USA after being in Canada for work for the last 2 weeks. Subject is employed by Clariant USA. Subject stated to Officer Smith that he has only lived in the USA (Minnesota) since 2004 and has never lived in Canada. Subject is a permanent resident in the USA A#097-963-928.
[6]
On
March 8, 2009, the Applicants submitted applications for Canadian citizenship.
They were required to meet the statutory residence requirements as set out in
subsection 5(1) of the Act as follows:
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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.
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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.
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[7]
In
his application for citizenship the male Applicant said that he had been
present in Canada for 1,214 days during the relevant period, that is the four
years immediately preceding the date of his application for citizenship. He said
he had been absent for 166.5 days.
[8]
The
female Applicant declared physical presence in Canada of 1,298 days and an
absence of 73 days.
[9]
Each
Applicant, in their citizenship applications, also declared that they did not
have permanent resident status in any other country.
[10]
On
August 10, 2010, the Applicants completed a citizenship test. They were
interviewed at that time by a citizenship officer. They were issued residence
questionnaires which they returned approximately two weeks later, together with
copies of other documents.
[11]
The
Applicants’ file was reviewed by another citizenship officer in or around
November 2011. This Officer, in examining copies of the Applicants’
passports, noticed that many stamps in the passports were imprinted “ARC”,
sometimes with a number. This Officer formed the opinion that “ARC” meant
“Alien Registration Card”. The Officer was also aware of the December 2008 FOSS
notes referred to above.
[12]
As
a result, on November 5, 2011, the Officer telephoned the male Applicant to
discuss his residence status in the United States. According to the Global Case
Management System notes, the Officer initially advised the male Applicant only
about the 2008 FOSS notes. According to the Officer, the male Applicant replied
that he was not a resident of the United States and that there had been a
misunderstanding, but that it had been clarified.
[13]
When
asked by the Officer if he knew the meaning of the “ARC” stamps in his
passport, the male Applicant replied in the negative. When the Officer said
that she believed “ARC” to stand for “Alien Registration Card”, the male
Applicant admitted that he held a U.S. Green Card. The Officer then informed
the male Applicant that he needed to obtain a letter from the American
authorities stating that he is not a U.S. resident. The Officer provided
her contact information. However, the male Applicant did not subsequently
contact the Officer or provide the requested information.
[14]
The
Officer decided that a hearing would be necessary in order to verify the period
of the Applicants’ residency in Canada. On December 28, 2011, the Applicants
appeared before the Citizenship Judge for their residence hearing.
[15]
Following
the hearing, the Applicants were afforded further time to provide additional
information. They submitted further documents throughout February 2012. The
Citizenship Judge delivered his decision on April 10, 2012.
[16]
In
his decision, the Citizenship Judge reviewed the conflicting evidence as to the
male Applicant’s resident status in the United States. Page 2 of the decision
provides, in part, as follows:
On
page 2 of the Canadian Citizenship Application (CIT 0002), and in response to
Question 7(d) of that form which asks “Do you have permanent resident status in
any other country,” the Applicant ticked the “No” box.
Yet,
in Port of Entry (FOSS) notes, NCB #Z011511300, created on Dec. 29, 2008, a
Canadian officer received the following information from a US counterpart and noted:
“Received
call from Officer Smith, Customs & Border Control at Windsor Ambassador Bridge stating that she is currently interviewing the subject [Mr. Gavriluta] who is
reentering the USA after being in Canada for work for the last 2 weeks.
Subject is employed by Clariant USA. Subject stated to Officer Smith that he
has only lived in the USA (Minnesota) since 2004 and has never lived in Canada. Subject is a permanent resident in the USA A#097-963-928.”
The
Applicant’s Romanian passport has many USA entry stamps with a hand-written
imprint of “ARC.” The imprint “ARC” means Alien Registration Card.” Also,
under some of these stamps the serial number A #097-963-928 is written. The
serial number is identical to the number referred to in the FOSS notes
mentioned above. [Emphasis in original]
[17]
The
Citizenship Judge then commented upon the examination of the male Applicant at
the hearing of December 28, 2011, as follows:
At
the Dec. 28, 2011 hearing, I raised the Green Card issue with the Applicant and
his response to Question 7(d) on Page 2 of the Canadian Citizenship Application
(CIT 0002). He stated:
“The way I interpreted is that
when it says ‘resident’ it means that where I reside. I have also Romanian
passport but I do not reside there. It was misunderstanding.
When
I read him Question 7(d) on page 2 of the Citizenship Application and stated
that the question is very clear about the issue of having permanent residency
status in any other country, he replied:
“That’s
how I understood it; it is misunderstanding.”
I
asked him about the US Custom and Border Patrol Officer’s comments in the FOSS
note. To this query he said, “It was misunderstanding.” I asked him if he
still has his Green Card and if the US authorities are aware that he has
permanent residency status in Canada. He replied “Yes” to both questions. I
asked him to provide me a letter from the US authorities stating that they are
aware that he is a permanent resident holder in the US and Canada simultaneously and then requested an outline of the policy on retaining the Green
Card. He stated “I will go and ask them.”
After
interviewing Mr. and Ms. Gavriluta separately, I called them back together to
my office to give them the new Residency Checklist to submit the missing
supporting documents which they failed to submit with the Aug. 10, 2010
[residency questionnaire] request. I also asked them to provide to me their US
Green Card applications and a letter from US authorities stating that they are
aware that the Applicants are permanent residents of Canada and stating the US
policy vis-à-vis Green Card Holders who reside in Canada.
To
this request, Ms. Gavriluta turned to her husband and said to him: “You will
lose your Green Card.” Mr. Gavriluta then said to me, “We will consult our
lawyer.” This response indicates that Ms. Gavriluta had an awareness that
holding permanent residence status in two countries might raise red flags for
immigration and citizenship officials in both countries.
At
the hearing the Applicant stated that he “files income tax in the US but he doesn’t pay.” This raises the question as to why would someone who is living,
working, and filing income tax in Canada has to file US income tax unless they
have residence status in the US.
The
above observation leads me to conclude that Mr. Gavriluta has US residence status and this puts into question his physical presence in Canada, and the number of
days he claims that he resided in Canada during the relevant period.
[18]
The
Citizenship Judge also noted that two re-entries to Canada could be seen in the
male Applicant’s Integrated Customs Enforcement System (“ICES”) Travel History
and three in the female Applicant’s travel history, none of which were declared
by the Applicants in either their citizenship applications or their residency
questionnaires. In the case of the male Applicant the undeclared re-entry dates
were March 21, 2006, and November 25, 2007. In the case of his wife, the
undeclared re-entry dates were March 4, June 17, and November 25, 2007.
[19]
By
a letter dated February 10, 2012, the Applicants’ lawyer acknowledged these
dates after receiving a copy of the ICES Travel History and advised that “Mr.
and Ms. Gavriluta advised that these are 1-day return trips to the US as they are not stamped on their passport.” However, without documentary evidence to
confirm that statement, the Citizenship Judge found that the departure dates,
and the true length of the trips, could not be established.
[20]
After
noting other minor inconsistencies in the travel dates given by the Applicants,
the Citizenship Judge then reviewed the Applicants’ Ontario Health Insurance
Plan (“OHIP”) usage history by examining their OHIP claims. He noted a break of
approximately two years, that is from February 2006 to January 2008, in the
male Applicant’s usage history. There was a thirteen month gap, that is from
September 2006 to October 2007, in the female Applicant’s usage history. The
Citizenship Judge expressed the view that these breaks were inconsistent with
the Applicants’ otherwise “extensive utilization of the medical system in Ontario.”
[21]
The
Citizenship Judge then considered that the Applicants had not obtained the
information and documents that they had been requested to obtain from the
American authorities. The Citizenship Judge did not accept their lawyer’s
statement that the requested information and materials “were not available”.
[22]
The
Citizenship Judge then proceeded to review other documents that had been
provided by the Applicants, including Canada Revenue Agency Assessments,
mortgage statements, municipal tax bills, and joint bank account statements.
The Citizenship Judge characterized these documents as “passive indicia” of
residency. Overall, the Citizenship Judge was not satisfied that the Applicants
had submitted credible evidence or that they had discharged their burden of
proving, on a balance of probabilities, that they had met the residency
requirements of the Act as set out in subsection 5(1) of the Act.
III. Issues
[23]
The
within proceeding raises the following issues:
i) What
is the applicable standard of review;
ii) Did
the Citizenship Judge err in selecting the wrong test for residency under
paragraph 5(1)(c) of the Act;
iii) Did
the Citizenship Judge err in his assessment of credibility; and
iv)
Did
the Citizenship Judge err in calculating the time for the purposes of
establishing residency?
IV. Discussion and Disposition
[24]
The
first issue to be addressed is the applicable standard of review. According to
the decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, there
are only two standards of review in the domain of administrative law, that is
correctness for issues of law and procedural fairness, and reasonableness for
questions of fact and mixed fact and law.
[25]
The
Applicants argue that the Citizenship Judge’s selection of the applicable test
for residency is correctness, referring to several decisions including El
Ocla v. Canada (Minister of Citizenship and Immigration) (2011), 389 F.T.R.
241 at para. 14, and Dedaj v. Canada (Minister of Citizenship and
Immigration) (2010), 372 F.T.R. 61.
[26]
The
Respondent submits that it remains within the discretion of the Citizenship
Judge to decide which test to apply and that as long as one of these tests is
correctly applied there will be no error on that basis alone; see the decisions
in El-Khader v. Canada (Minister of Citizenship and Immigration) (2011),
386 F.T.R. 142 at para. 10 and Balta v. Canada (Minister of Citizenship and
Immigration) (2011), 403 F.T.R. 134 at para. 10.
[27]
In
my opinion, since the jurisprudence allows for a choice among the tests for the
purpose of establishing residency, the choice of test is a question of
discretion for the Citizenship Judge; see the decision in Lam v. Canada
(Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177.
Discretionary decisions are subject to deference; see Dunsmuir, supra,
at para. 53. It follows that both the choice of the residency
test and its application are reviewable on the standard of reasonableness.
[28]
The
Citizenship Judge chose to apply the residency test set out in Pourghasemi,
Re (1993), 62 F.T.R. 122. This test relies upon a strict count of days, as
opposed to the “centralized mode of living” test as per Re Papadogiorgakis,
[1978] 2 F.C. 208 at page 214, or the test of “substantial connection” as set
out in Koo, Re (1992), 59 F.T.R. 27 at para. 10.
[29]
The
Citizenship Judge was allowed to choose one of the three tests. The next
question is whether he reasonably applied the test chosen, that is, did the
Citizenship Judge reasonably conclude that the Applicants had failed to
establish their physical presence in Canada for 1,095 days, in order to satisfy
the requirements of the Act?
[30]
In
addressing this issue, I must necessarily look at the manner in which the
Citizenship Judge assessed the credibility of the Applicants, as well as his
assessment of the reliability of the various documents that were submitted.
[31]
In
my opinion, the Citizenship Judge’s concerns about the Applicants’ credibility
were well-founded. The most obvious matter is the FOSS note entry, reproduced
above, which shows that the male Applicant was not forthright about the history
of his residence in both Canada and the United States. The male Applicant did
not give a clear answer as to why he told the Canadian immigration officer that
he had never lived in Canada and had been living in the United States since 2004. According to the reasons of the Citizenship Judge, the male
Applicant dismissed this statement as a “misunderstanding”. The Citizenship
Judge reasonably found that there were serious grounds to disbelieve the male
Applicant.
[32]
There
is a further related serious concern about the Applicants’ truthfulness and
credibility, arising from the Applicants’ answer to question 7(d) on the
citizenship application, that is the question “Do you have permanent resident
status in any other country?” The Applicants gave a negative answer. Both Applicants
were examined on this issue, separately, according to the reasons of the
Citizenship Judge. He concluded that the Applicants had misrepresented the
facts in giving negative answers to this question. He did not accept their
explanation that the negative answers were a result of a misunderstanding.
[33]
The
Citizenship Judge made a reasonable finding that the Applicants had
misrepresented their status in the United States.
[34]
The
Applicants’ arguments about the “materiality” of their misrepresentation cannot
succeed. They submit that the “damage” arising from the missing re-entry data
can be limited to a certain range of dates, based on the “undisputed” re-entry
dates entered in the record. However, even if those particular re-entry dates
can be limited by the previously recorded re-entry dates in the ICES travel
history, there is no means of verifying the accuracy of the departure dates.
[35]
In
these circumstances, the entire travel history of the Applicants is in doubt.
No independent confirmation of their claim has been provided. I am satisfied
that the Citizenship Judge considered the materiality of the Applicants’
misrepresentation and reasonably found that misrepresentation to be relevant to
all their claims. The Citizenship Judge acted reasonably in rejecting the
Applicants’ claim to Canadian citizenship on the basis of the evidence before
him.
[36]
Although
the Citizenship Judge erred in setting out the relevant time period for
determining residency, a point addressed by Counsel in post-hearing submissions,
this error does not affect the ultimate decision and disposition of these
appeals.
[37]
The
Citizenship Judge found that the relevant period for assessing the residency
required for the male Applicant was August 14, 2005, to March 8, 2009. This was
wrong; the relevant period was March 8, 2005, to March 8, 2009. In my opinion,
the error is immaterial since it is clear from the decision that the
Citizenship Judge was applying the physical presence test and given the
problems with the evidence submitted by the Applicants, he could not determine
if the Applicants had met the threshold of 1,095 days of residency.
[38]
In
conclusion, the Applicants have failed to show that the Citizenship Judge
committed any reviewable error or that the decision fails to meet the standard
of reasonableness. The decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and the law.
[39]
These
reasons will be filed in cause number T-946-12 and placed on the file in cause
number T-947-12.
[40]
The
appeals will be dismissed. Since the Respondent did not seek costs, none will
be awarded.
“E.
Heneghan”
Toronto, Ontario
June 25, 2013
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