Docket: T-1384-13
Citation:
2014 FC 476
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, May 16, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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TLILI, NAIM
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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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JUDGMENT AND REASONS
I.
Preliminary remarks
[1]
The Court notes that citizenship is granted only
to applicants who meet the criteria set out in section 5 of the Citizenship
Act, RSC 1985, c C-29. A certain period of residence is required
in this sort of case in order for an applicant to be granted Canadian
citizenship. According to paragraph 5(1)(c), a person who applies
for citizenship must show that he or she has, within the four years immediately
preceding the date of his or her application, accumulated at least
1,095 days of residence in Canada.
[2]
Justice Donald J. Rennie explained as follows in
Abbas v Canada (Minister of Citizenship and Immigration), 2011 FC
145:
[8] Irrespective of which test is applied, each
applicant for citizenship bears the onus of establishing sufficient credible
evidence on which an assessment of residency can be based, whether it is
quantitative (Re Pourghasemi) or qualitative (Koo). In this
regard, the citizenship judge must make findings of fact—findings which this
Court will only disturb if unreasonable.
[3]
Contrary to what the applicant claims, the onus
is on him alone to prove that he met the residence requirements established in
the Citizenship Act (Chen v Canada (Minister of Citizenship and Immigration),
2008 FC 763, 169 ACWS (3d) 956 at para 18). It was not up to the
citizenship judge to present sufficient evidence that the applicant was not
present in Canada. Justice Frank Muldoon noted as follows in Pourghasemi
(1993), 62 FTR 122, 39 ACWS (3d) 251 (FCTD):
[3] It is clear that the purpose of paragraph
5(1)(c) is to insure that everyone who is granted precious Canadian
citizenship has become, or at least has been compulsorily presented with the everyday
opportunity to become, “Canadianized”. [Emphasis added.]
II.
Introduction
[4]
This is an appeal filed pursuant to
subsection 14(5) of the Citizenship Act, against a decision of a
citizenship judge dated May 23, 2013, rejecting the applicant’s
application for Canadian citizenship on the basis that he did not meet the
residence requirements under paragraph 5(1)(c) of the Citizenship
Act.
III.
Facts
[5]
The applicant, Naim Tlili, entered Canada on
January 4, 2006, on a study permit. He allegedly studied at the École des
Hautes Études Commerciales [HEC] in Montréal from January 2006 to
May 2008.
[6]
The applicant became a permanent resident of
Canada on May 13, 2007.
[7]
On December 11, 2009, he submitted an
application for citizenship. In his application, the applicant declared that he
had been physically present in Canada for 1,113 days and outside Canada
for 76 days in the four years immediately preceding the date of his
application (the relevant period).
[8]
After returning a Residence Questionnaire and
supporting documents for his application to a citizenship officer, the applicant
was summoned to a hearing before a citizenship judge. The hearing was held on
April 3, 2013.
[9]
In addition to giving answers regarding his
alleged period in Canada, the applicant admitted to the citizenship judge
having declared personal bankruptcy because his spending had exceeded his
income.
[10]
The citizenship judge rejected the applicant’s
citizenship application on May 23, 2013. The applicant is now appealing
against that decision.
IV.
Decision under judicial review
[11]
Relying on the test set out in Pourghasemi,
above, the citizenship judge found that the applicant had not presented
sufficient documentary evidence to show that met the residence requirement
under paragraph 5(1)(c) of the Citizenship Act, that is, the
applicant had not established that he was physically present in Canada
for 1,095 days in the four years immediately preceding the date of his
application. In particular, she noted that the applicant had not filed any
work-related documents in support of his declaration that he had been a
self-employed worker in Canada in 2008 and 2009.
[12]
The citizenship judge also noted that some of
the items of documentary evidence submitted to the Minister of Citizenship were
inconsistent with the applicant’s written and verbal statements, and that the
statements themselves were contradictory at times.
[13]
She found that these contradictions, in addition
to the evasive answers given at the hearing, undermined the applicant’s
credibility. She therefore gave little weight to the other documents that were
submitted to her.
V.
Issue
[14]
Did the citizenship judge err in finding that
the applicant did not meet the residence requirements under paragraph 5(1)(c)
of the Citizenship Act?
VI.
Relevant statutory provisions
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5. (1) The Minister shall grant citizenship to any person who
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5. (1) Le ministre
attribue la citoyenneté à toute personne qui, à la fois :
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. . .
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[…]
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(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:
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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 :
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(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
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(i) un demi-jour
pour chaque jour de résidence au Canada avant son admission à titre de
résident permanent,
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(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;
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(ii) un jour pour
chaque jour de résidence au Canada après son admission à titre de résident
permanent;
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VII.
Standard of review
[15]
The standard of review applicable to appeals
against decisions of citizenship judges is the reasonableness standard (Canada
(Minister of Citizenship and Immigration) v Abdallah, 2012 FC 985, 417 FTR
13; Pourzand v Canada (Minister of Citizenship and Immigration), 2008 FC
395, 166 ACWS (3d) 222).
VIII.
Analysis
[16]
The applicant argues that the citizenship judge
erred in basing her decision on his presence in Canada on subjective doubts and
irrelevant facts. The applicant alleges that he was not given the benefit of
the favourable presumptions included in the Act.
[17]
The applicant also submits that the citizenship
judge erred in finding that there were contradictions between his written and
oral statements and the documentary evidence he filed. The applicant submits
that there were no real contradictions; rather, he alleges that the citizenship
judge misinterpreted his statements.
[18]
Finally, the applicant submits that the
citizenship judge erred in applying the residence test. The applicant claims
that she did not discharge her duty to show that, on a balance of
probabilities, the applicant was not present in Canada during the relevant
period.
[19]
Although the Citizenship Act does not
define the words “resident” or “residence”, the case law of this Court has
established that there are three approaches to the question of how to determine
the “residence” of an applicant in the context of paragraph 5(1)(c)
of the Citizenship Act. It was one of these approaches, the quantitative
approach, that was adopted by the citizenship judge in this case. This approach
entails asking whether the applicant was physically present in Canada
for at least 1,095 days in the four years immediately preceding the date
of his or her application (Pourghasemi, above).
[20]
In the present case, the citizenship judge found
that the applicant had not filed sufficient evidence establishing his physical
presence in Canada during the relevant period. She noted that the applicant had
shown a possible presence in Canada in the year 2006, having provided a
transcript of marks from the HEC, but it was difficult to confirm his presence
after that time. She agreed that the applicant had had several medical
appointments after 2006 but determined that these appointments did not confirm
a continuous presence in Canada.
[21]
Having regard to the evidence in the record, the
Court is of the opinion that the decision of the citizenship judge is entirely
reasonable. Despite the evidence filed by the applicant confirming the
abovementioned medical appointments, the fact remains that there are long
periods during which the applicant has not demonstrated his physical presence
in Canada. The Court agrees that the other documents presented by the applicant
are definitely proof of the applicant’s life in Canada; however, they do not
establish that he was physically present in Canada during the relevant period (Dachan
v Canada (Minister of Citizenship and Immigration), 2010 FC 538, [2010] FCJ
no 643 (QL/Lexis) at para 24).
[22]
In her decision, the citizenship judge also
raised the numerous inconsistencies in the evidence submitted by the applicant,
thereby reaffirming her doubts as to whether the applicant had truly been
present in Canada for the number of days required under the Citizenship Act.
[23]
The Court is not persuaded that the citizenship
judge misinterpreted the evidence in this regard. Her reasons clearly indicate
that she asked the applicant specific questions regarding his presence in Canada
and that the answers he gave contradicted his written answers and certain items
of documentary evidence. It was therefore open to the citizenship judge to make
an unfavourable finding concerning the credibility of the applicant’s story.
[24]
In short, the Court finds that the citizenship
judge’s reasons were intelligible and entirely justified by the evidence. The
decision therefore falls within a range of possible, acceptable outcomes and should
not be disturbed.
IX.
Conclusion
[25]
For all the above reasons, the applicant’s
appeal is dismissed.
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