Docket: T-1874-13
Citation:
2014 FC 592
Ottawa, Ontario, June 20, 2014
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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MOHAMMAD HASSAN ASKARI
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Respondent
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JUDGMENT AND REASONS
[1]
This is an appeal of the decision of Angelo
Persichilli, 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 allowed the Respondent’s application for
Canadian citizenship.
I.
Issue
[2]
Did the Citizenship Judge err when he concluded
that the Respondent had satisfied the residency requirement under paragraph
5(1)(c) of the Act?
II.
Background
[3]
The Respondent is an Iranian citizen. He arrived
in Canada on April 2, 1997, and became a permanent resident on January 12,
2001. On October 1, 2008, he applied for Canadian citizenship. For the purpose
of meeting the residency requirement for Canadian citizenship in 5(1)(c) of the
Act, the relevant time period is October 1, 2004, to October 1, 2008 [the
Relevant Period].
[4]
In his citizenship application, the Respondent reported
that during the Relevant Period he had been physically present in Canada for 1137 days and absent for 323 days. These absences were accumulated through four
absences to the Middle East. Three out of the four absences are corroborated by
dates listed on his Integrated Customs Enforcement System History [ICES
History]. However, the fourth absence listed in his ICES History is inconsistent
with the fourth absence listed in his citizenship application. His ICES History
states that on one occasion he returned to Canada on August 3, 2005, while the
corresponding absence on his citizenship application states that he returned to
Canada on November 29, 2005.
[5]
The Respondent submitted a passport issued April
8, 2008. He did not submit a passport covering the remainder of the Relevant
Period.
[6]
The Respondent had a hearing before the Judge on
April 16, 2013. The Judge issued a written decision on September 19, 2013.
[7]
The Judge notes various background facts about
the Respondent. His analysis is as follows:
The ICES report confirms that the applicant had
4 entries into Canada during the relevant period. There is, however, a
discrepancy with one of them. The applicant writes that he left Canada for 69 days from 22 Sept. 2005 and back on Nov. 29, 2005. There is no report on ICES
of this entry; there is an entry stamp on Aug. 3rd 2005 instead. There is no
doubt that there is a mistake but I am still convinced that the applicant has
enough days of physical presence in Canada during the relevant period.
Considering all the above, and based on my
careful assessment of the applicant’s testimony, as well as my consideration of
the information and evidence before me, I am satisfied that the applicant was
actually living and was physically present in Canada on the number of days
sufficient to comply with the Citizenship Act.
III.
Standard of Review
[8]
The standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Jeizan, 2010 FC 323, at para 12; Dunsmuir
v New Brunswick, 2008 SCC 9).
IV.
Analysis
[9]
The Applicant acknowledges that the Judge
applied the strict physical presence test from (Re) Pourghasemi, [1993]
FCJ No 232 (TD), and that the Judge found that the Respondent had accumulated
the number of days required to satisfy 5(1)(c) of the Act.
[10]
However, the Applicant argues that given the
Respondent’s evidentiary burden to provide sufficient objective evidence to
satisfy 5(1)(c) of the Act, the evidence before the Judge was not sufficient
for him to conclude that 5(1)(c) of the Act was met. The Applicant notes that
the passport provided by the Respondent in support of his application only
covered a small part of the Relevant Period and contained illegible stamps that
were not referred to by the Judge. Given that there was no other evidence
submitted to establish his physical presence in Canada, the Applicant argues
that the decision was unreasonable.
[11]
The Applicant also argues that the inadequacy of
the Judge’s reasons contribute to the unreasonableness of his decision. The
Applicant argues that the reasons provided do not sufficiently explain how the
Judge’s decision was arrived at, particularly in light of the dearth of evidence
submitted by the Respondent and the discrepancy between the Respondent’s
citizenship application and his ICES History.
[12]
The Respondent did not make submissions or
appear at the hearing.
[13]
The substance of the Applicant’s argument is
that it was unreasonable for the Judge to find that the Respondent met the
residency requirement in the absence of corroborative evidence. However, there
is nothing in the record before me which shows that the Judge’s decision was
unreasonable within the meaning described in Dunsmuir. The Applicant’s
argument amounts to a request of this Court to re-weigh the evidence that was
before the Judge.
[14]
There is nothing in the Act or the case law
referenced by the Applicant which suggests that the Respondent failed to submit
a required form of evidence. Cases cited by the Applicant refer to the fact
that the Respondent bore the evidentiary onus of proving his case to the
satisfaction of the Judge, not that he bore the onus of adducing specific
evidence. The Judge’s reasons indicate that he was satisfied the Applicant had
met that evidentiary onus. The Applicant makes only unsupported assertions that
the Judge’s conclusions on the evidence were erroneous.
[15]
It is clear how the Judge decided the Respondent
had satisfied the residency requirement under 5(1)(c) of the Act. He considered
the discrepancy between the Respondent’s stated absences and his ICES History,
concluded that the date was written in error, and found that the Applicant had
been physically present in Canada for the requisite number of days during the
Relevant Period. In doing so, he relied on the Respondent’s testimony and the
information before him, which included both the Respondent’s ICES History and
his citizenship application. His reasons are intelligible and transparent.
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