Date:
20130723
Docket:
T-1109-12
Citation:
2013 FC 808
Ottawa, Ontario,
July 23, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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NING DONG
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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 pursuant to subsection 14(5) of the Citizenship Act, RSC
1985, c C-29, (the Act) of the decision of a Citizenship Judge dated February
15, 2012, rejecting the applicant’s application for citizenship.
[2]
The
applicant seeks an order quashing the Citizenship Judge’s decision and granting
a writ of mandamus to compel the Minister to grant the applicant
citizenship.
Background
[3]
The
applicant is a citizen of China who became a permanent resident of Canada on October 2, 2002.
[4]
He
applied for Canadian citizenship on March 16, 2010. He appeared before the Citizenship
Judge on December 14, 2011.
The Decision
[5]
The
Citizenship Judge communicated his decision to the applicant in a letter dated
April 13, 2012. The Citizenship Judge identified the relevant four year period
for the Act’s residence requirement as March 16, 2006 to March 16, 2010.
[6]
The
Citizenship Judge noted at that at the hearing the applicant had been requested
to provide the Citizenship Judge with additional supporting documentation
within 30 days, on or before January 16, 2012, and that an extension was
subsequently granted to the applicant until February 22, 2012.
[7]
The
Citizenship Judge found that the applicant had failed to meet the requirements
of paragraph 5(1)(c) of the Act, as he had not provided that critical
supporting documentation and the Citizenship Judge was therefore unable to determine
the applicant’s residency.
[8]
The
documents that the applicant did submit contained inaccuracies and
non-declarations. The applicant’s payment summary from the Ministry of Health
and Long Term Care showed only one payment during the entire review period. The
applicant claimed to have not filed income tax or corporate tax returns for the
period under review. His ICES traveller history showed an entry the applicant
failed to report on March 12, 2009.
[9]
Since
the applicant did not comply with his request for evidence, the Citizenship Judge
found the applicant had not met the requirements of the Act. The Citizenship Judge
declined to make a favourable recommendation under subsection 5(4) of the Act.
[10]
The
certified tribunal record shows that the Citizenship Judge requested the
following documents:
RESIDENCE
QUESTIONNAIRE
ICES
TRAVELLER HISTORY 02 OCTOBER 2002 TO PRESENT
RECORD
OF MOVEMENT FROM U.S.A. COVERING 2 OCTOBER TO PRESENT
LEGIBLE
COPIES OF ALL PAGES OF BOTH PASSPORTS
TRAVEL
RECORD FROM BOTH (CHINA) & HONG KONG COVERING 2 OCTOBER 2002 TO PRESENT
T4’s
AND NOTICE(S) OF ASSESSMENT COVERING YEARS 2002 TO PRESENT
EMPLOYMENT/CORPORATE
TAX DECLARATIONS & FILINGS 2003 TO PRESENT (INCLUDING ALL INTERNATIONAL
INCOME(S)
MINISTRY
OF HEALTH & LONG TERM CARE BILLING RECORD COVERING JAN 1, 2003 TO PRESENT
PHONE
& UTILITY BILLS COVERING JAN 1, 2003 TO PRESENT
Issues
[11]
The
applicant’s memorandum raises the following issues:
1. If the applicant
has realized an error has been made in the application, what is the last chance
for him to make the correction without being taken as “failed to declare”?
2. Are border
control files weighed as some of the most important documents and taken
seriously?
3. Should the origin
of the applicant be taken into consideration due to the fact that not all
passports are treated equally at borders and the fact that not all countries
allow dual citizenship?
4. How often should
a permanent residence visit a hospital, clinic or family doctor to be
considered as physically in Canada?
5. How many days
does the Citizenship Judge consider the applicant to have actually been in Canada?
[12]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Citizenship
Judge err in refusing the application?
Applicant’s Written Submissions
[13]
The
applicant points out that his ability to travel internationally is limited by
his Chinese passport and U.S. visa.
[14]
The
applicant concedes he made an error in his original application by omitting a
one day trip to the United States on March 11 to 12, 2009. However, the
applicant had communicated this error to the respondent in a letter dated
January 6, 2012, meaning it had been corrected before the Citizenship Judge
made a decision. This single day of absence does bring the applicant’s
residency below 1,095 days as the applicant has 1,121 days of physical
presence. This appears to be the sole incorrect declaration as no others were
identified by the Citizenship Judge. Therefore, the Citizenship Judge is
questioning the integrity of the border control systems of Canada, China and Hong Kong.
[15]
The
applicant argues there is no legal requirement to use health services to gain
citizenship and he did not need such services being a young person in good
health. He did attempt to renew his OHIP card but his paperwork was rejected.
[16]
The
applicant argues that the Act does not require the filing of tax returns in
order to be qualified as a citizen. Violations of other laws are not relevant
to the residency requirement of the Act.
[17]
The
applicant provides additional documents in an affidavit in this proceeding to
prove he has met the physical residency requirements.
Respondent’s Written Submissions
[18]
The
respondent argues the applicant has shown no error in the Citizenship Judge’s
analysis. It is not open to the applicant to supplement his application with new
evidence. Those portions of the affidavit which attempt to prove new evidence
should be struck.
[19]
The
respondent argues the applicant is asking this Court to reweigh the evidence.
The applicant does not deny his single use of OHIP or lack of tax returns, but
merely disagrees about the weight of this evidence. The onus was on the
applicant to establish his residency and he failed to do so.
Analysis and Decision
[20]
Issue
1
What is
the appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[21]
This
Court has previously held that reasonableness is the appropriate standard of
review for appeals from the decisions of citizenship judges (see Kohestani v
Canada (Minister of Citizenship and Immigration), 2012 FC 373 at
paragraph 12, [2012] FC No 443).
[22]
In
reviewing the Citizenship Judge’s decision on the standard of reasonableness,
the Court should not intervene unless the Citizenship Judge came to a
conclusion that is not transparent, justifiable and intelligible and within the
range of acceptable outcomes based on the evidence before it (see Dunsmuir above,
at paragraph 4). As the Supreme Court held in Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, it is not up to
a reviewing court to substitute its own view of a preferable outcome, nor is it
the function of the reviewing court to reweigh the evidence (at paragraph 59).
[23]
Issue
2
Did the
Citizenship Judge err in refusing the application?
The
respondent has submitted that evidence contained in the applicant’s affidavit
that was not before the Citizenship Judge should not be considered by me. I
agree
with the respondent.
[24]
A
review of the applicant’s submissions leads me to conclude that he is in effect
asking me to reweigh the evidence. That is not my role on this application
(appeal).
[25]
My
review of the Citizenship Judge’s reasons do not lead me to conclude that the Citizenship
Judge found that using publicly insured health services or filing tax returns
were a legal precondition to obtain Canadian citizenship. He simply noted the
omission of this evidence which he is entitled to do as a Citizenship Judge
when assessing proof of residency.
[26]
I
agree with the applicant that he corrected the omission of the single day trip
to the United States. I note the Citizenship Judge assessed the other evidence
of residency that was before him and the error with respect to the single day
trip would not appear to be crucial to the decision that was reached. The Citizenship
Judge simply found that there was insufficient evidence to satisfy the
requirements of paragraph 5(1)(c) of the Act with respect to residency.
[27]
The
application (appeal) of the applicant is therefore dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application (appeal) of the
applicant is dismissed.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Citizenship
Act, RSC
1985, c C-29
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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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