Date:
20130712
Docket:
T-788-12
Citation:
2013 FC 783
Ottawa, Ontario,
July 12, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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SORAYA KAMAL FARAG
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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 a decision of a citizenship judge dated February 15,
2012, rejecting the applicant’s application for citizenship.
[2]
The
applicant seeks an order returning the matter for redetermination by a
different citizenship judge.
Background
[3]
The
applicant became a permanent resident of Canada upon arrival on July 19, 1997.
She applied for citizenship on August 16, 2010.
[4]
On
September 1, 2011, the applicant was sent a residency questionnaire by
Citizenship and Immigration Canada (CIC). The questionnaire was received at CIC
Windsor on September 27, 2011.
[5]
She
attended a hearing with the citizenship judge on December 15, 2011.
The Decision
[6]
The
decision is dated February 15, 2012. The citizenship judge identified August
16, 2006 to August 15, 2010 as the relevant time period for calculating
residency under the Act. She indicated the applicant had claimed 1,286 days of
possible physical presence. She was not persuaded the applicant established and
maintained residence as required by the Act.
[7]
The
citizenship judge noted the lease for the applicant’s address from August 19,
2005 to August 31, 2007 named the other members of the applicant’s family but
not her. The credit card statements provided only started 14 months into the
residency period and indicated numerous overseas purchases during the time
period the applicant claimed to be present in Canada. The bank statements
submitted only included the first page of multi-page documents and could not
therefore be analyzed. They also included Interac purchases at times when the applicant
was not physically present in Canada.
[8]
The
applicant provided tax returns for 2006, 2007, 2008 and 2010, but not 2009. All
reflect no income. The citizenship judge questioned how the applicant could
afford international travel. The applicant’s University of Windsor record indicated she had not obtained any credits since the fall term of 2008 and was
required to withdraw from that program.
[9]
In
the applicant’s residence questionnaire, there were changes from the facts of
the applicant’s initial application. She included more home addresses in Montreal, Ottawa and Windsor. She added home schooling and St. Claire College to her
education. She changed dates of a 2007 trip to reflect 10 days longer abroad.
[10]
The
citizenship judge indicated the applicant had been invited to a hearing to be
tested for language, knowledge and to explain these discrepancies.
[11]
At
the hearing, the applicant provided a driver’s license that had expired in
August 22, 2010 and explained that she had never driven a vehicle and only used
the license for identification purposes. The applicant said she had moved back
and forth between Egypt and Canada several times after permanent residency, but
this had not been reflected on her residency questionnaire. The applicant had
listed an address that RCMP had advised CIC was false information. The applicant’s
explanation was that she had listed what her father told her to list.
[12]
The
applicant described her current home at the hearing. She had left the section
of the questionnaire on social ties blank and advised the citizenship judge at
the hearing she was not attending school or volunteering due to depression. She
had never seen a dentist or doctor of any kind; her prescription eyeglasses
were prescribed in Cairo in 2008.
[13]
At
the hearing, the citizenship judge had requested various extra documentation
from the applicant. It was received by CIC on December 23, 2011. The United Arab Emirates entry and exit records indicated approximately 92 days of undeclared
absences during the relevant time period.
[14]
On
a balance of probabilities, the citizenship judge was not satisfied that the
information provided by the applicant accurately reflected the number of days
that the applicant was physically present in Canada.
[15]
The
citizenship judge applied the test from Re Koo, [1992] FCJ No
1107. She applied its six factors as follow:
(1)
was the individual physically present in Canada for a long period prior to
recent absences which occurred immediately before the application for
citizenship;
The citizenship judge noted the
applicant’s extensive travel to Egypt and the United Arab Emirates before the
residency period and that the applicant had indicated she had no social ties in
Canada.
(2)
where are the applicant’s immediately family and dependents (and extended
family) resident;
The applicant’s immediate family live in
Windsor, Ontario, but the applicant has extended family in the United Arab Emirates and Egypt.
(3)
does the pattern of physical presence in Canada indicate a returning home or
merely visiting the country;
The citizenship judge found it difficult
to assess the applicant’s actual physical presence. It did not seem credible to
her that the applicant would not have any social ties despite her full time
university studies. The fact that the applicant had no doctors, dentists or
prescription drugs in Canada and handled her eyeglass prescriptions in Cairo indicated she had not established a footprint since her landing in 1997 and was
merely visiting.
(4)
what is the extent of the physical absences - if an applicant is only a few
days short of the 1095 day total it is easier to find deemed residence than if
those absences are extensive;
The citizenship judge found that due to
the many inconsistencies in the applicant’s testimony and declarations, she had
not proven that she was actually physically present in Canada for the required time.
(5)
is the physical absence caused by a clearly temporary situation such as
employment as a missionary abroad, following a course of study abroad as a
student, accepting temporary employment abroad, accompanying a spouse who has
accepted temporary employment abroad;
The citizenship judge found the applicant’s
situation was not temporary. The applicant continued to travel extensively in
2009, 2010 and 2011. The citizenship judge found that the applicant must have
income despite her tax filings of zero income.
(6)
what is the quality of the connection with Canada: is it more substantial than
that which exists with any other country.
The citizenship judge found that the applicant’s
only connection with Canada seemed to be her immediate family.
[16]
The
citizenship judge did not approve the application and declined to make a
favourable recommendation under subsections 5(3) and 5(4) of the Act.
Issues
[17]
The
applicant’s memorandum raises the following issue:
Did the citizenship judge
err in law in finding that the applicant did not satisfy the residence
requirements in paragraph 5(1)(c) of the Act?
[18]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the citizenship
judge err in rejecting the application?
Applicant’s Written Submissions
[19]
The
applicant argues the standard of review is reasonableness. She argues that the
only proper test for residency under the Act is that set out in Martinez-Caro
v Canada (Minister of Citizenship and Immigration), 2011 FC 640, the
physical presence test. The citizenship judge erred in using the test from Re
Koo above. The citizenship judge’s own calculation showed that the applicant
had only been absent for 325 days, therefore giving her 1,135 days of physical
presence.
[20]
The
applicant submits further that the citizenship judge erred in the application
of the test from Re Koo above. The applicant had provided information to
the citizenship judge relevant to the Koo factors:
1. She had asked to
be home schooled due to her family landing in Quebec and her lack of French
capabilities. She had some social ties and did not say she had no social ties.
2. Her time in Canada during the relevant period is accurate as per her residency questionnaire.
3. She stated she
did not feel comfortable going to doctors and refused vaccinations at the University of Windsor out of fear.
4. Before her
depression, the applicant attended two full years of university and the other
years in Canada can be proven by bank statements. Her income comes from her
father.
5. Her family is not
her only tie in Canada as she also has friends from university.
[21]
The
documentation provided by the applicant supports the fact that she had
centralized her mode of living in Canada. It was unreasonable for the
citizenship judge to find otherwise.
Respondent’s Written Submissions
[22]
The
respondent argues that reasonableness is the appropriate standard of review. It
remains open to citizenship judges to adopt either of the tests this Court has
set out for the residency requirement of the Act. So long as the test is
reasonably applied, this Court ought not intervene.
[23]
The
citizenship judge’s application of the chosen test was reasonable, but it would
not have mattered which test she applied. There were too many discrepancies in
the evidence so the citizenship judge reasonably concluded the evidence was
insufficient. The main problem was the lack of objective evidence showing an
audit trail. It is plain on the face of the evidence before the citizenship
judge that the requirements had not been met.
Analysis and Decision
[24]
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).
[25]
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] FCJ No 443).
[26]
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 (Minister of 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).
[27]
Issue
2
Did the citizenship judge
err in rejecting the application?
This appeal is not about
which residency test to apply. It is clear that the citizenship judge would
have rejected the application under any of the tests, as she was not convinced
the applicant was more than minimally attached in Canada qualitatively and that
she had not spent the requisite amount of time here quantitatively.
[28]
I
cannot, contrary to the applicant’s argument, infer from the citizenship
judge’s notes contained in the certified tribunal record that she made a conclusion
as to the number of days that the applicant was absent from Canada. Her
calculations regarding the claimed number of days in Canada is clearly distinct
from her judgment on whether there was sufficient evidence to support those
claimed days.
[29]
The
citizenship judge considered the evidence submitted by the applicant and
concluded that she had not been present for the requisite number of days, based
on numerous inconsistencies in the documentary evidence. It was therefore to
the applicant’s advantage that the citizenship judge applied the qualitative
test as opposed to ending the inquiry after this finding. The citizenship judge’s
application of that test was reasonable given the applicant’s limited
establishment in Canada.
[30]
The
appeal is therefore dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the applicant’s appeal is dismissed.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Citizenship
Act, RSC
1985, c C-29
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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