Docket: T-494-14
Citation:
2014 FC 978
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, October 15, 2014
Present: The Honourable Madam Justice Bédard
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BETWEEN:
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LILIANE BALLOUT
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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
[1]
The applicant appeals from a decision dated December 19,
2013, by a Citizenship Judge (the judge), who did not approve her application
for citizenship. This case was heard at the same time as that of the
applicant’s spouse (docket T-492-14) and their son (docket T-493-14). For the
reasons that follow, the appeal is dismissed.
I.
Background
[2]
The applicant is a Lebanese citizen. She arrived
in Canada on June 27, 2007, as a permanent resident, with her spouse and their
three children. She applied for citizenship on September 2, 2010.
[3]
Subsection 5(1) of the Citizenship Act, RSC
1985 c C-29 (the Act), which sets out the criteria for granting citizenship, reads
as follows:
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Grant of citizenship
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Attribution de la citoyenneté
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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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(a) makes
application for citizenship;
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a) en fait la demande;
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(b) is
eighteen years of age or over;
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b) est âgée d’au moins dix-huit ans;
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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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(d) has an
adequate knowledge of one of the official languages of Canada;
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d) a une connaissance suffisante de l’une des
langues officielles du Canada;
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(e) has an
adequate knowledge of Canada and of the responsibilities and privileges of
citizenship; and
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e) a une connaissance suffisante du Canada et
des responsabilités et avantages conférés par la citoyenneté;
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(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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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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[4]
In her application for citizenship, the
applicant declared 1104 days of presence in Canada and 58 days of
absence (attributable to a trip to Lebanon) during the review period, which ran
from June 27, 2007, to September 2, 2010. She also stated that she has
held the position of consultant in her spouse’s company, Haddad, Ballout Consultant,
since 2007.
[5]
On November 8, 2011, the applicant was advised
by a citizenship officer that she had to file her passport or passports, complete
the residence questionnaire and provide supporting documentation. The applicant
completed the questionnaire in which she reiterated the information contained
in her application for citizenship and indicated that she was working as a
consultant (assistant) for her spouse’s company. She also attached a copy of
the following documents:
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All the pages of her Lebanese passport;
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Certain identification documents and confirmation
of her permanent residence;
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A lease relating to the family residence for the
period of July 1, 2007, to June 30 2008;
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Copy of a notice of renewal for the lease for
the period of July 1, 2010, to June 30, 2011;
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Copy of a notice of assessment from Revenu Québec
for the year 2010;
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A bill from Hydro-Québec in her spouse’s name,
dated October 11, 2011;
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A bill from Bell relating to a service account
in her spouse’s name, dated October 26, 2011.
[6]
The applicant was called to a hearing before the
judge on October 31, 2013.
II.
Impugned decision
[7]
It is clear from the decision that the judge
applied the residency test provided at paragraph 5(1)(c) of the Act,
which requires physical presence, developed in Pourghasemi, (Re) (1993)
62 FTR 122, [1993] FCJ No 232. In her view, the evidence submitted by the
applicant was insufficient to establish on a balance of probabilities that she
was present in Canada for at least 1095 days during the four years immediately
preceding her application for citizenship.
[8]
The judge stated that she did not consider the
passports to be irrefutable evidence of presence in Canada and noted that she had
advised the applicant of this at the hearing.
[9]
She also found that the other documents submitted
by the applicant were insufficient to establish her physical presence in Canada.
[10]
In her decision, the judge stressed some elements.
[11]
She considered that the confusion in the applicant’s
testimony as to her functions in the company Haddad, Ballout Consultant undermined
her credibility. The judge first noted that the applicant had stated in her application
for citizenship that she was a consultant, while in her questionnaire she had
added the word “assistant”. The judge added that she requested that the
applicant explain her work as a consultant/assistant and indicated that the
applicant had then explained that she was instead a secretary and that she took
calls for her spouse.
[12]
The judge also noted that the applicant claimed
that she took French courses but that she did not remember the name of the
school where she had studied and that she could not produce transcripts.
Questioned on the period during which she had taken her courses, the applicant apparently
answered in the summer of 2008. The judge stated that when the applicant was confronted
with the fact that in her application for citizenship, she had stated that she
went to Lebanon between June 24, 2008, and August 21, 2008, the
applicant then allegedly stated that she took courses in June 2008.
[13]
The judge found that the applicant’s memory
lapses did not help explain her presence in Canada.
[14]
The judge also stated that she questioned the
applicant regarding her purchases in Canada, to which the applicant allegedly
responded that she paid in cash.
[15]
The judge found that the applicant’s testimony and
the documentation that she sent left big gaps in her story.
III.
Issue
[16]
As stated previously, the judge chose to apply
the objective test of physical presence to determine whether the applicant had satisfied
her residency obligation as required by paragraph 5(1)(c) of the Act.
The applicant does not contend that the judge could not choose to apply this
test and, for my part, I have already stated on at least three occasions that, in
my view, citizenship judges can choose among the three tests traditionally recognized
by jurisprudence as being reasonable interpretations of the residency test (Tawfiq
v Canada (Minister of Citizenship and Immigration), 2012 FC 34 at para 9,
[2012] FCJ No 1711 (Tawfiq); Balta v Canada (Minister of Citizenship
and Immigration), 2011 FC 1509 at paras 9-11, [2011] FCJ No 1830 (Balta);
Canada (Minister of Citizenship and Immigration) v Saad, 2011 FC 1508 at
para 14, [2011] FCJ No 1801).
[17]
Accordingly, the only issue in this appeal is
whether the Citizenship Judge’s decision is reasonable.
IV.
Standard of review
[18]
The parties submit, and I agree, that the
decision of a citizenship judge who must determine whether a person meets the residence
conditions in paragraph 5(1)(c) of the Act raises a question of
mixed fact and law that is reviewable on a reasonableness standard (Saad v
Canada (Minister of Citizenship and Immigration), 2013 FC 570 at para 18,
[2013] FCJ No 590 (Saad); Tawfiq, above, at para 8; Canada
(Minister of Citizenship and Immigration) v Al-Showaiter, 2012 FC 12 at para 13,
[2012] FCJ No 7; Balta, above, at para 5).
[19]
It is important to bear in mind that the Court reviewing
a decision on a reasonableness standard may not substitute its own assessment
of the evidence for that of the decision-maker, in this case the Citizenship
Judge, and that it is limited to verifying whether the decision has the
qualities that make it reasonable. As the Supreme Court stated in Dunsmuir v
New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190, "[r]easonableness is concerned mostly with the existence
of justification, transparency and intelligibility within the decision making
process and with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and the law”.
[20]
Regarding the adequacy of reasons in support of
an administrative tribunal’s decision, the Supreme Court discussed the perspective
that the reviewing court must adopt in Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR
708:
12 It is important
to emphasize the Court’s endorsement of Professor Dyzenhaus’s observation that
the notion of deference to administrative tribunal decision-making requires “a
respectful attention to the reasons offered or which could be offered in
support of a decision”. In his cited article, Professor Dyzenhaus explains how
reasonableness applies to reasons as follows:
…
16 Reasons may not include all the arguments, statutory provisions,
jurisprudence or other details the reviewing judge would have preferred, but
that does not impugn the validity of either the reasons or the result under a
reasonableness analysis. A decision-maker is not required to make an explicit
finding on each constituent element, however subordinate, leading to its final
conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin
District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other
words, if the reasons allow the reviewing court to understand why the tribunal
made its decision and permit it to determine whether the conclusion is within
the range of acceptable outcomes, the Dunsmuir criteria are met.
V.
Analysis
[21]
The applicant is essentially invoking a disagreement
with the judge’s assessment of the evidence adduced. She alleged that she erred
in her assessment of her credibility and argued that the documents submitted to
establish her physical presence in Canada should have been considered sufficient.
[22]
Furthermore, she submits that the judge erred in
finding that her passport was not valid evidence of when she entered and left Canada. She emphasizes the fact that the passport is an official legal document that should
attest to its contents and that, in addition, she provided her passport at the express
request of the citizenship officer. In the circumstances and relying on Saad,
above, the applicant submits that what the judge said is speculative and that
if the judge had doubts about the information in the applicant’s passport it
was up to her to verify it with the Canada Border Services Agency (the CBSA).
[23]
With respect, I consider that the decision of the
Citizenship Judge, in light of the evidence submitted by the applicant, falls
within the possible and reasonable outcomes.
[24]
First, the Citizenship Judge did not reject the
applicant’s passport. She indicated in her decision that, in her view,
passports do not constitute irrefutable evidence of presence in Canada. Her finding in this regard was based on the existence of possible subterfuges to circumvent
stamping, including the use of passes that allow simplified customs clearance and
the problem caused by candidates who use more than one travel document. She stated
in the decision that she had informed the applicant of her position with
respect to passports and had asked her at the end of the hearing if she wanted
to add information to her file.
[25]
A passport is certainly a document that contains
pertinent information for the purposes of analyzing a person’s application for
citizenship. Moreover, it was at the request of the citizenship officer that the
applicant submitted a copy of her Lebanese passport. However, I find that it
was not unreasonable to conclude that a passport does not constitute a document
that irrefutably attests to a person’s presence in Canada. The reasons given by the judge as the basis for her conclusion are not far-fetched
and can be justified in light of the evidence. The evidence shows that Canada does not routinely stamp passports. The Citizenship Policy Manual CP-5 deals
with stamping and with monitoring entries into and exits from the country at p 20
(p 27 of the respondent’s file) and contains the following statement:
Note: Since not all countries, including Canada, routinely stamp passports at entry, a lack of entry stamps is not always indicative
that no absences have occurred.
[26]
The evidence also shows that Canada does not monitor exits from the country.
[27]
In view of the evidence, it was therefore reasonable
to find that a passport does not constitute irrefutable confirmation of its
holder’s physical presence in Canada. As for the applicant’s argument that the Citizenship
Judge should have verified the information with the CBSA, I would just like to point
out that the onus is on the applicant to submit sufficient and satisfactory
evidence of her presence in Canada.
[28]
With respect to the Saad case cited above,
which the applicant relied on, the context that led to the Court’s judgment
was completely different and Judge Gagné’s comments cannot be transposed to
this case. First, in Saad, the Citizenship Judge did not reject the application
for citizenship on the basis that she was assigning no probative value to the
information in the applicant’s passport. Second, the Court intervened because the
Citizenship Judge had applied two different residency obligation tests at the
same time.
[29]
Third, it was the respondent, and not the Citizenship
Judge, who, during the hearing before the Court, had raised the possibility
that the applicant’s absences were, in fact, more numerous than those indicated
in her passport because she could have left the country without her passport being
stamped on her exit from or return to Canada. Moreover, this allegation by the
respondent was not supported by any evidence. Judge Gagné found that the
respondent’s argument was speculative and noted that the respondent could have checked
with the CBSA whether the applicant’s entries and exits matched the information
in her passport. I understand that in this context Judge Gagné could have found
that the allegation was speculative.
[30]
In this case, the judge found that the passports
do not constitute irrefutable evidence of entries into and exits from the
country. Her finding is articulated and reasonably supported by the evidence. In
addition, the judge advised the applicant of her position with respect to the
probative value of the passports and, at the end of the hearing, the judge
offered her the possibility of adding information to her file, an offer that
she did not pursue.
[31]
With respect to the conclusions of the judge relating
to the applicant’s credibility, I find that they are reasonable with respect to
the evidence. The applicant’s statements, regarding the work that she performed
in her spouse’s company, changed over time. In addition, the memory lapses and
the total lack of documents relating to the French courses that the applicant allegedly
took, are surprising, to say the least, especially since she had to know that
this information could be relevant in establishing her presence in Canada.
[32]
With regard to the other elements and documents submitted
by the applicant, I am of the view that it was reasonable to find that they
were insufficient to establish her presence. The residence questionnaire that the
applicant completed provides a significant number of examples of documents that
may be submitted (p 47 of the respondent’s record) but the applicant did not
file a sufficient number of documents to show her physical presence in Canada.
[33]
Regarding the identification documents, I agree
with the respondent: they are passive evidence of residence, but do not establish
the applicant’s physical presence.
[34]
With respect to the judge’s reasons, I find that
they explain the reasoning on which the judge based her conclusion, which falls
within the range of possible, acceptable outcomes having regard to the evidence.
[35]
The appeal is therefore dismissed.
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