Docket:
T-1638-13
Citation: 2014 FC 500
Ottawa, Ontario, May 26, 2014
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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HATEM SALAMA RE ABDOU
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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 of the decision of Wojciech
Sniegowski, a Citizenship Judge with the Citizenship Commission, Immigration
Canada [the Judge], pursuant to subsection 14(5) of the Citizenship Act,
RSC 1985, c C-29 [the Act]. The Judge denied the Applicant’s application for Canadian
citizenship by deciding that he did not meet the residency requirement as
defined in 5(1)(c) of the Act. .
I.
Issues
[2]
The issues are:
A.
Was the Judge’s decision reasonable in finding
that the Applicant did not meet the residency requirement in 5(1)(c) of the
Act?
B.
Did the Judge breach the duty of procedural
fairness?
II.
Standard of Review
[3]
The issues involving the assessment of evidence
and of mixed fact and law are reviewable on the standard of reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9, at para 47-48 51, 53-54, 57, 62, 64; Singh
v Canada (Minister of Citizenship and Immigration), 2008 FC 408 at para 10).
[4]
The issue of procedural fairness is reviewable
on the standard of correctness (Dunsmuir, at paras 57, 79; Navidi v Canada (Minister of Citizenship and Immigration), 2012 FC 372, at para 13 [Navidi]).
III.
Background
[5]
The Applicant is a stateless individual who was
born in Kuwait. He arrived in Canada on June 7, 2003, and became a Permanent
Resident of Canada on that date. He made an application for Canadian
citizenship on August 8, 2008. For purposes of the residency requirement in
5(1)(c) of the Act, the Relevant Period at issue is August 8, 2004, to August
8, 2008 [the Relevant Period].
[6]
In his original application for citizenship, the
Applicant listed three absences from Canada totalling 354 days. This includes a
320 day absence to Kuwait from 2004-2005. However, in his follow-up Residency
Questionnaire, the Applicant listed only 34 days of absence, omitting the 320 day
absence to Kuwait listed in his original application.
[7]
In support of his application, the Applicant
submitted numerous documents, including:
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Records with the Ontario Ministry of Health;
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Notices of Assessment for 2003-2006, 2008;
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Gas receipts;
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Report cards for his children in Ontario schools;
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Incorporation documents for 6612237 Canada
Limited, a corporation for which the Applicant is an Officer and Director;
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Banking records showing numerous wire transfers beginning
in March, 2006;
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Documentation pertaining to the removal of
conditions that were imposed on him as a Permanent Resident;
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Copies of two passports belonging to the
Applicant. One is valid from September 15, 2002, to October 2, 2004, and
contains a Kuwaiti residence permit valid from September 24, 2001, to September
9, 2004. The other is valid from May 5, 2009, to May 4, 2014, and contains a
Kuwaiti residence permit valid from May 20, 2009, to July 3, 2010;
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A Citizen’s Report from the Hamilton Police Service,
which notes that his passport was not recovered after a stolen vehicle was
returned to the Applicant, on or around October 3, 2007; and
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Documents regarding financial and real estate
dealings.
[8]
The Applicant did not submit a passport which
covered the period from September 10, 2004, to May 4, 2009.
[9]
The Applicant had an interview before the Judge
on April 18, 2013.
[10]
The Judge evaluated whether the Applicant met
the residency requirement in 5(1)(c) of the Act in accordance with the test
from (Re) Pourghasemi, [1993] FCJ No 232 (TD) [Pourghasemi]. In
so doing, the Judge was not satisfied that the Applicant had proven that he was
physically present in Canada for 1,095 days during the relevant period.
[11]
The Judge noted credibility concerns regarding
the discrepancy between the absences listed on his original application (354
days) and his residence questionnaire (34 days). Additionally, without a
passport submitted that was valid for the bulk of the Relevant Period, his
absences were not verifiable.
[12]
The Judge found that the banking records
submitted to prove the sale of construction equipment were more consistent with
money transfers aimed at supporting family in Canada. This is supported by the
fact that on his Residence Questionnaire, the Applicant claimed he sold his
construction company in 2004.
[13]
Further, the Judge found that the lack of any
reported income in 2003 and 2004 does not support his contention that he lived
in Canada during the Relevant Period.
[14]
Based on the information submitted, the Judge was
not satisfied that he had met the test from Pourghasemi (Atwani v Canada (Minister of Citizenship and Immigration), 2011 FC 1354, at paras 12, 18).
IV.
Analysis
A.
Was the Judge’s decision reasonable?
[15]
The Applicant makes limited submissions on the
reasonableness of the Judge’s decision. His arguments amount to a claim that
the Judge failed to properly consider the evidence of the Applicant’s Ministry
of Health records, gas receipts, and documentation pertaining to the removal of
conditions imposed on him as a Permanent Resident.
[16]
While the Judge did not cite all the evidence
mentioned by the Respondent, as a whole the Judge’s decision was reasonable.
There was a significant discrepancy between the absences declared in the
Applicant’s original application and his Residence Questionnaire. The lack of a
passport to verify these absences leaves the Applicant without clear or
convincing evidence of his physical presence in Canada during the Relevant
Period. In addition, it was reasonable of the Judge to find that the money
transfers were more consistent with supporting family in Canada than of the gradual selling of construction equipment, given that the Applicant claimed he
sold his construction equipment in 2004.
[17]
The Applicant’s arguments amount to assertions
that the Judge failed to appropriately consider the evidence. This is not
sufficient to show that the Judge’s decision was unreasonable.
B.
Did the Judge breach the duty of procedural
fairness?
[18]
The Applicant notes that section 1.10 of the Citizenship
Policy Manual [the Manual] suggests that a high degree of procedural
fairness may be required of a citizenship judge due to the nature of the rights
at issue. At sections 1.12 and 1.19 of the Manual, the content of this duty is
described as including the right to be heard and that it may be unfair for a
citizenship judge to base a decision on information that the applicant has not
had an opportunity to comment on.
[19]
The Applicant argues that he was never given an
opportunity to address a number of the Judge’s concerns. First, the Judge did
not question him about the discrepancy in the absences declared in his
citizenship application and his Residence Questionnaire. Second, the Judge did
not give the Applicant an opportunity to explain why he was unable to submit a
passport to corroborate his stated absences. Third, the Judge drew a negative
inference from the Applicant’s history of money transfers, without giving the
Applicant an opportunity to explain how these transfers reflect Kuwaiti
business practices.
[20]
As these findings were central to the Judge’s
decision, the Applicant argues that he ought to have been given an opportunity
to respond to them.
[21]
At paras 8 and 10-12 of his affidavit, the
Applicant describes a number of issues that were not raised by the Judge in his
interview:
8. At the outset of the interview, the
citizenship judge flatly told me he did not want to see any documents that I
had in my possession. The citizenship judge was mainly focussed on questioning
me about the money I brought to Canada by means of selling heavy construction
equipment in Kuwait…
10…I was never questioned by the citizenship
judge at my interview concerning the discrepancy which I was in a position to
explain and satisfy the citizenship judge as to why and how the discrepancy
came about.
11…the citizenship judge did not provide me
with an opportunity to address his concerns concerning the missing passport and
if he had allowed me the opportunity to address his concerns, I would have been
able to provide evidence concerning my trips during the years 2004 and 2009
outside Canada.
12…I was not questioned by the citizenship
judge concerning any medical problems that my family members had during the
time I was in Canada and if he had done so, I would have been in a position to
show the citizenship judge that I had to be in Canada for approximately one
year when my daughter, Tala lost an eye due to an accident which occurred in or
about October 2006.
[22]
This summary is supported by the notes of the
interview provided by the Judge at pages 30-32 of the Certified Tribunal
Record. These notes primarily relate to the money the Applicant brought into Canada, the alleged sale of heavy construction equipment by the Applicant, and some
background information.
[23]
A fair reading of the Applicant’s affidavit and
the Judge’s notes shows that the Judge did not focus his questioning on the
discrepancy in the absences declared, the lost passport, or the other
documentary evidence submitted.
[24]
The content of the procedural fairness required
of a Judge in the context of a citizenship interview was described in Johar
v Canada (Minister of Citizenship and Immigration), 2009 FC 1015, at para
41 [Johar]:
The Citizenship Judge is not obligated to
provide an appellant with an opportunity to file additional material. The process
cannot become a running commentary on the adequacy of the appellant's evidence
(Zheng v. Canada (MCI), 2007 FC 1311, 163 A.C.W.S. (3d) 120, per Justice
Simpson at para. 14). However, it is well established that an interview with
the Citizenship Judge is "clearly intended to provide the candidate the
opportunity to answer or, at the very least, address the concerns which gave
rise to the request for an interview in the first place", and when an
appellant is deprived of the opportunity to address those concerns, a denial of
natural justice occurs (Stine v. Canada (MCI), [1999] F.C.J. No. 1264 (QL), 173
F.T.R. 298, per Justice Pelletier at para. 8; Tshimanga v. Canada (MCI), 2005
FC 1579, 151 A.C.W.S. (3d) 18, per Deputy Justice Rouleau at para. 17-19).
At issue in Johar was a lost passport
and credibility concerns relating to that loss, similar to this case.
[25]
The Respondent cites Navidi in support of
its position. In Navidi, the applicant’s travel history included a
number of undeclared absences. The judge held that this undermined the
applicant’s credibility and none of the other evidence submitted by the
applicant was sufficient to show that 5(1)(c) of the Act was satisfied. The
applicant claimed that he had not been afforded due procedural fairness as he
was not given an opportunity to respond to the negative credibility finding in
his interview. However, in Navidi, the judge did request additional
submissions of the applicant (Navidi, at para 31).
[26]
The Judge’s decision in this appeal hinged on a
negative credibility finding, based on the discrepancy in the absences declared
by the Applicant. As in Johar, the Judge did not raise this discrepancy
with the Applicant. Given the necessary procedural fairness afforded to
applicants in citizenship applications and the centrality of this issue to the
Applicant’s claim, I find that there was a breach of procedural fairness.
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