Docket: T-346-14
Citation:
2015 FC 116
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, January 29, 2015
PRESENT: The Honourable Mr. Justice Locke
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BETWEEN:
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MOHAMAD EL-HUSSEINI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to subsection 14(3) of the Citizenship Act, RSC 1985, c C-29 (the
Act), of a decision of the Citizenship Judge (the Judge), dated December 18,
2013, denying the applicant’s application for Canadian citizenship under
paragraph 5(1)(c) of the Act.
I.
Facts
[2]
The applicant is a Lebanese citizen and has been
a permanent resident of Canada since May 15, 2007.
[3]
On July 31, 2010, the applicant applied for
Canadian citizenship. In his citizenship application, the applicant declared
that he had accumulated a physical presence in Canada of 1,106 days from
May 15, 2007, to July 31, 2010.
[4]
From January 2008 to April 2010, the
applicant took vocational training at Collège Champlain and Cégep
Marie-Victorin.
[5]
In a letter dated November 17, 2011, Citizenship
and Immigration Canada (CIC) informed the applicant that certain documents and
information were required to support his application, specifically a residency
questionnaire and travel documents regarding his entries into and exits from
Canada, establishing his professional and social ties to Canada. That letter
also informed the applicant of the necessity of providing [Translation] “any
document” that he thought would establish the quality of his attachment
to Canada. On December 1, 2011, the applicant sent to CIC the completed
residency questionnaire and documents establishing the quality of his
attachment to Canada.
[6]
In a letter dated September 26, 2012, counsel
for the applicant enquired about the status of the applicant’s citizenship
application, given the delay in processing the application. Counsel for the
applicant mentioned in that letter that he was hired by the applicant [Translation] “to
find out what the problem was in order to devise possible solutions.” As
there was no response from CIC, counsel for the applicant resent the same
letter that was received by CIC on November 21, 2012. After the letter was
sent, but before it was received by CIC, counsel for the applicant contacted
CIC by e-mail on November 5, 2012, in the hope of obtaining information about
the status of the applicant’s file. In his affidavit, the applicant submits
that CIC did not reply to either his counsel's letters or e-mail, a submission
that the respondent does not dispute.
[7]
A notice to appear for an interview with a
citizenship judge dated November 21, 2013, was sent to the applicant. The
notice to appear informed the applicant of the need to bring [Translation] “all
original documents supporting his citizenship application”.
[8]
On December 4, 2013, in accordance with the
notice to appear, the Judge met the applicant at an interview. The applicant
contends that he brought a file folder full of documents proving his physical
presence in Canada from May 17, 2007, to July 31, 2010.
[9]
The applicant submits that the Judge did not ask
him for any additional document or piece of evidence during the interview
(other than his marks from Collège Champlain), although the Judge mentions in
the reasons for her decision that the applicant [Translation] “stated that he does not
have active documents testifying to his presence in Canada before January 2008.”
The versions of the applicant and the respondent seem contradictory with
respect to whether the Judge allegedly did or did not inform the applicant that
he could submit the documents he brought to the interview in support of his
application and his presence in Canada before January 2008.
[10]
On December 18, 2013, the Judge denied the applicant’s
application for Canadian citizenship.
II.
Decision
[11]
The Judge’s decision is based on the fact that
the applicant allegedly did not prove, on a balance of probabilities, that he
was physically present in Canada for a minimum of 1095 days from May 15,
2007, to July 31, 2010, as required under paragraph 5(1)(c) of the Act.
What was particularly troubling for the Judge was the lack of evidence from the
applicant to support his physical presence in Canada between May 7, 2007, and
January 2008.
[12]
Indeed, the Judge determined that the
documentation filed by the applicant did not make it possible to establish the
length of the absence that the applicant declared from October 13, 2007, to
October 23, 2007, since no entry stamp for Lebanon dated October 13, 2007,
appeared on the applicant’s passport. The Judge noted that the passport is not
[Translation] “conclusive evidence” of presence in Canada [Translation] “given
the possible deceptions” for avoiding stamps through the use of passes
for simplified border crossings and the “pink card”
by some Lebanese. The Judge noted that the applicant admitted to using the “pink card” two or three times.
[13]
The reasons for decision indicate that the
applicant told the Judge during the interview that from May 7, 2007, to January
2008 he was looking for work, but the applicant did not provide any
evidence to support his claim.
III.
Issues
[14]
There are two issues:
1. Did the Judge breach her duty of procedural fairness?
2. Did the Judge err in denying the applicant’s citizenship application
on the ground that he failed to meet the requirements of paragraph 5(1)(c)
of the Act?
[15]
Based on my analysis of the first issue, it is
not necessary for me to analyze the second issue.
IV.
Relevant Law
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Citizenship
Act, RSC 1985, c C-29
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Loi sur la
citoyenneté, LRC 1985, c C-29
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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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V.
Analysis
A.
Standard of Review
[16]
In Dunsmuir v New Brunswick,
2008 SCC 9, the Supreme Court of Canada held at paragraph 57 that a
standard of review analysis is not necessary if “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question.”
[17]
An analysis on the reasonableness standard must
be made to determine whether the Judge erred in rejecting the applicant’s citizenship
application on the basis that it did not meet the requirement of the number of
days of physical presence in Canada within the meaning of paragraph 5(1)(c)
of the Act (Canada (Citizenship and Immigration) v Bani-Ahmad,
2014 FC 898, at para 10; Ghahremani v Canada (Citizenship and
Immigration), 2009 FC 411, at para 19).
[18]
However, the standard of correctness must apply to
determine whether the Judge breached her duty of procedural fairness (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, at para 43; Fan
v Canada (Citizenship and Immigration), 2013 FC 789, at para 23).
B.
Did the Judge breach procedural fairness?
[19]
Although it is correctly settled in the case law
that the citizenship judge “is not obligated to provide
an applicant with a running commentary about the adequacy of his documentation”
and “[t]he onus is on the applicant to establish
residence” (Zheng v Canada (Citizenship and Immigration),
2007 FC 1311, at para 14), we should also keep in mind that principles
that the Supreme Court of Canada set out in Baker v Canada (Citizenship and
Immigration), [1999] 2 RCS 817 (Baker) regarding the duty of
procedural fairness in order to come to a proper decision in this case. In Baker,
Justice L’Heureux-Dubé recalled that “the concept of
procedural fairness is eminently variable” and all of the circumstances
must be considered in order to determine the content of the duty of procedural
fairness (Baker, at para 21, citing Knight v Indian Head School
Division No 19, [1990] 1 RCS 653, at 682). Justice L’Heureux-Dubé also
wrote in Baker at paragraph 25:
The more
important the decision and the greater the impact on the persons affected, the
more stringent the procedural protections mandated. Moreover, Justice Dickson
(later Chief Justice) stated this in Kane v. Board of Governors of the
University of British Columbia, [1980] 1 S.C.R. 1105, at p 1113...
[20]
More recently, rulings of our Court confirmed
that a fairly high standard of procedural fairness must be applied in the
decision-making process with respect to a citizenship application. In Sadykbaeva
v Canada (Citizenship and Immigration), 2008 FC 1018, Justice De
Montigny states at paras 15-16:
[15] Applying these criteria to the case at
hand, I am of the view that a fairly high standard of procedural fairness must
inform the decision-making process followed in a citizenship application. I am
mindful of the fact that decisions to deny citizenship applications are not
final and may be appealed to the Federal Court pursuant to section 14(5) of the
Citizenship Act, and that the discretion bestowed on Citizenship Judges
is quite broad and affords them a wide margin of appreciation to decide on
proper information gathering procedures.
[16] That being said, the nature of the
decision clearly resembles an adjudication. It is based on facts concerning
an individual, which are assessed in light of reasonably objective criteria,
and the outcome applies only to the individual party. Moreover, the
decision to grant or deny citizenship is obviously of great importance to the
applicant as it affects her rights, privileges and responsibilities in this
country, as well as those of her son. Finally, the applicant had an expectation
that a certain procedure would be followed with respect to the assessment of
her knowledge of Canada. While the Supreme Court stressed in Baker that
legitimate expectations can not create substantive rights, it did emphasize
that they could inform the content of the duty of fairness owed to an
individual.
[Emphasis added]
[21]
Moreover, “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” [Emphasis
added] (Johar v Canada (Citizenship and Immigration), 2009 FC 1015
(Johar), at para 41).
[22]
In Tanveer v Canada (Citizenship and
Immigration), 2010 FC 565, Justice Zinn states at para 19:
As it is, it is impossible to determine what
purpose the Citizenship Judge thought was served by the interview. The
applicant has filed an affidavit in which she offers explanations for most if
not all of the concerns expressed by the Citizenship Judge in her reasons. The
respondent pointed out repeatedly that this was information that was not before
the Citizenship Judge – implying that this Court should ignore it. While it
is true that the affidavit was not before the Citizenship Judge that begs
the question of why the relevant information contained within the affidavit was
not before her. It would have been before her if the Citizenship Judge had
asked the applicant questions directed to the areas that concerned her. There
is nothing in the application or documentation provided that is directly
contradictory and thus, absent questioning from the Citizenship Judge, the
applicant would have no way of knowing what the areas of concern were. Fairness,
in these circumstances, required that the Citizenship Judge put her concerns to
the applicant so that the applicant would have the opportunity to know the case
she had to meet. The onus in citizenship applications is on the applicant,
but the onus is not on the applicant to anticipate every concern that a
citizenship judge might have with the evidence submitted.
[Emphasis added]
[23]
In this case, the accounts submitted by the
applicant and the respondent regarding whether the Judge gave the applicant the
chance to submit additional evidence during the interview seem to be
contradictory. However, what is objectively verifiable is that the applicant
submitted to this Court an affidavit in which he replies to all of the Judge’s
concerns with supporting documentation. I acknowledge that this evidence was
not before the Judge and thus it is not relevant in determining the reasonableness
of the decision. Nonetheless, this evidence shows that the applicant would have
been able to address the Judge’s concerns if he had been informed of those concerns.
[24]
In this case, the Judge’s main concern was about
the applicant’s physical presence from May 7, 2007, to January 2008. The
applicant submits that he was absent from Canada from October 13, 2007, to
October 23, 2007 (10 days). As mentioned above, the Judge determined
that the evidence submitted did not enable her to confirm that the applicant
had indeed left Canada on October 13, 2007.
[25]
The applicant provided the Judge with the
following evidence regarding his physical presence in Canada from May
7, 2007, to January 2008:
1.
A solemn affirmation from his landlord that he
has been living in Montréal, QC, since May 15, 2007;
2.
A second solemn affirmation from the same
landlord confirming the applicant’s rental of a unit in Montréal, QC, from May
15, 2007, to July 31, 2009;
3.
A third solemn affirmation from the same
landlord confirming the applicant’s rental of a unit in Montréal, QC, from May
15, 2007, to July 31, 2010;
4.
A copy of his passport;
5.
His income tax return for 2007;
6.
A copy of his driver’s licence indicating that
it was issued on November 16, 2007;
7.
His testimony during the interview with the
Judge explaining the steps and approaches taken to find work in Canada from May
15, 2007, to January 2008;
8.
His permanent residency card dated May 28, 2007;
and
9. A letter from the Régie de l’assurance maladie du Québec dated July
23, 2007, confirming the applicant’s registration in the public insurance plan as
of August 1, 2007.
[26]
The following supplementary evidence seems to
demonstrate that the applicant complied with paragraph 5(1)(c) of the
Act, specifically, seems to confirm his statements regarding the date he left
for Lebanon, October 13, 2007:
1.
A list of his entries and exits from Lebanon
issued by the Sûreté générale [public safety branch] of the Lebanese Ministry
of the Interior for the period from 2007 to 2010. That document indicates
that the applicant entered Lebanon on October 15, 2007, and left Lebanon on
October 23, 2007, which aligns with his claim that he was absent from Canada
from October 13, 2007, to October 23, 2007. Furthermore, the document
supports in every detail the applicant’s description of his entries and exits
provided in the residency questionnaire.
2. The boarding passes for the applicant’s trip to Lebanon from October
13, 2007, to October 23, 2007.
[27]
Moreover, the applicant, through his counsel,
sought to respond to CIC’s concerns before his interview in order to comply
with the Act and verify the status of his application. However, the applicant’s
uncontradicted affidavit reveals that he received no reply from CIC about the
status of his application. I would also note that the applicant claims in his affidavit
that his interview with the Judge lasted about twenty minutes and that she said
nothing about her concerns regarding his declared absence from October 13, 2007, to
October 23, 2007 (see: Johar, at para 42, regarding the length of the
interview).
[28]
With respect to the apparent contradiction
between the statement in the Judge’s decision that the applicant said at the
interview that he did not have active documents to prove his presence in Canada
before January 2008, and the applicant’s statement that the Judge never asked
for such documents, I believe that there was a misunderstanding between the
Judge and the applicant on this point. In my opinion, it would be unfair to
punish the applicant for an error in communication.
[29]
The applicant is not one who, by pure negligence,
would not have provided the documents required to prove the length of his
physical presence in Canada in support of his citizenship application. The
applicant provided the documents that he thought were required to CIC and the
Judge. To make sure that he was complying with the Act, he tried to contact CIC
many times to inquire about the status of his file.
[30]
Since the applicant received no information
about CIC’s concerns about the length of his physical presence in Canada,
despite the actions of his counsel in this regard, I am of the view that this
application for judicial review should be allowed. Natural justice requires
that decision-makers demonstrate a certain level of transparency, which was not
the case here.
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