Docket: T-2598-14
Citation:
2015 FC 987
Toronto, Ontario, August 19, 2015
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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ABDUL R.
SHAHEIN
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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]
Abdul Shahein appeals from a Citizenship Judge’s
decision refusing his application for Canadian citizenship on the basis that he
had failed to establish that he had been physically present in Canada for 1095
days during the four years preceding the filing of his citizenship application.
Dr. Shahein asserts that the Citizenship Judge’s decision was
unreasonable, and that the Citizenship Judge was biased against him.
[2]
I am satisfied that the Citizenship Judge’s decision
was reasonable. Dr. Shahein has also failed to provide me with reliable
evidence establishing that the Citizenship Judge was biased against him. As a
consequence the appeal will be dismissed.
I.
The Reasonableness of the Citizenship Judge’s
Finding on the Issue of Physical Presence
[3]
The onus was on Dr. Shahein to establish
that he was in fact in Canada on the days in question. Given that he only
claimed to have been in Canada for 1097 days between June 7, 2010 and July 27,
2013 (a mere two days over the 1095-day minimum), his failure to establish
physical presence on just a few of the days claimed would be fatal to his
application for citizenship.
[4]
The Citizenship Judge identified numerous
inconsistencies in, and problems with the evidence adduced by Dr. Shahein
in support of his citizenship application. While Dr. Shahein attempted to
address some of these concerns in the affidavit that he filed in support of his
appeal, his affidavit has actually had the effect of compounding the confusion
on a number of points.
[5]
The respondent has identified numerous
inconsistencies in the information that Dr. Shahein provided during his
citizenship hearing, in his citizenship application and residence
questionnaire, and in his affidavit. While I do not intend to review each of
the inconsistencies in the evidence, I agree with the respondent that these
inconsistencies raise very serious concerns as to the reliability of Dr. Shahein’s
evidence.
[6]
I do, however, wish to highlight one
inconsistency in the evidence which was, by itself, sufficient to defeat Dr. Shahein’s
claim to have been physically present in Canada for 1097 days during the
relevant period, which ended on July 27, 2013, the date on which Dr. Shahein
applied for Canadian citizenship.
[7]
Dr. Shahein’s “LinkedIn” profile states that he was
a Pediatric Intern at Nationwide Children’s Hospital in Columbus, Ohio from
February of 2013 to May of 2014. This was inconsistent with Dr. Shahein’s
statement to the Citizenship Judge that he only began working at the hospital
in July of 2013. When the Citizenship Judge questioned Dr. Shahein about
the information in his “LinkedIn” profile, Dr. Shahein stated that he was conducting research at the hospital
during that period, and was only required to travel to the United States for
two or three days at a time.
[8]
Dr. Shahein claimed to be living in Windsor,
Ontario between February and July of 2013, with only occasional brief trips to
the United States. However, when he was asked by the Citizenship Judge to
provide the specific dates that he was working at the hospital in the United
States, Dr. Shahein stated that he was unable to do so as he could not remember
the precise dates of his trips.
[9]
Dr. Shahein provides a different explanation for
this discrepancy in his affidavit. He states that when the Citizenship Judge
confronted him with the statement in his “LinkedIn” profile regarding the
dates of his internship, Dr. Shahein explained that he was supposed to begin
his internship program in July of 2012, but his start had been delayed because
of difficulties he had encountered in obtaining his American visa. As a result,
he did not begin the program until the following year. According to Dr. Shahein’s
affidavit, he had simply failed to update his “LinkedIn” account to reflect this
change, as he no longer used the account.
[10]
There are two problems with this explanation.
[11]
The first is that Dr. Shahein’s “LinkedIn”
profile did not state that he commenced his internship in July of 2012, as suggested
in his affidavit. It says that he commenced his internship in February of 2013,
which was shortly after he got his American J-1 visa allowing him to
work in the United States. As a result, any delay that Dr. Shahein may
have experienced in obtaining the visa would not explain how erroneous
information ended up in his “LinkedIn” profile.
[12]
The second problem with the explanation offered
by Dr. Shahein in his affidavit is that he clearly did continue to use
his “LinkedIn” account on an ongoing basis, as it had been updated as recently as
October of 2014 to include information regarding his subsequent entry into a
residency program at an American hospital.
[13]
As was mentioned at the outset of these reasons,
Dr. Shahein bore the onus of establishing that he was in Canada on the
days in question. He provided inconsistent and unsatisfactory evidence regarding
his whereabouts from February to July of 2013. In these circumstances, the
Citizenship Judge’s finding that Dr. Shahein had failed to provide
reliable evidence to support his claim to have been physically present in
Canada for 1097 days was entirely reasonable.
II.
The Bias Issue
[14]
Dr. Shahein’s affidavit also makes very
serious allegations of misconduct on the part of the Citizenship Judge. At the
hearing before me, Dr. Shahein’s counsel went so far as to describe the
Citizenship Judge as “a
monster” and “a disgrace”,
submitting that there was “incredibly
dangerous bias here”.
[15]
I agree that if the allegations made by Dr. Shahein
are true, they would be very troubling indeed. However, I am not prepared to
find that the allegations have been proven on a balance of probabilities on the
basis of the evidence before me.
[16]
An allegation of actual or apprehended bias
raises a question of procedural fairness. I must, therefore, determine whether
the process followed by the decision‑maker satisfied the level of
fairness required in all of the circumstances: see Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12 at para. 43, [2009] 1 S.C.R. 339.
[17]
Dr. Shahein alleges that from the outset of
the hearing the Citizenship Judge attempted to intimidate him, that he yelled
at Dr. Shahein’s young daughter when she started singing the Canadian
national anthem at the hearing, and that he ordered that Dr. Shahein’s
wife and child leave the hearing room when Dr. Shahein’s wife attempted to
confirm one of his answers.
[18]
Dr. Shahein further alleges that the
Citizenship Judge asked inappropriate questions about Dr. Shahein’s wife,
that he screamed at Dr. Shahein throughout the hearing, that he ignored Dr. Shahein’s
answers to questions, and that he was dismissive and at times derisive. According
to Dr. Shahein, the Judge’s conduct was “an indication of racial and religious discrimination”.
[19]
The test for determining whether actual bias or
a reasonable apprehension of bias exists in relation to a particular
decision-maker is well known: the question for the Court is what an informed
person, viewing the matter realistically and practically - and having thought
the matter through - would conclude. That is, would he or she think it more
likely than not that the decision-maker, either consciously or unconsciously,
would not decide the matter fairly: see Committee for Justice and Liberty v.
Canada (National Energy Board), [1978] 1 S.C.R. 369, at p. 394, 68 D.L.R.
(3d).
[20]
Dr. Shahein notes that the evidence in his
affidavit regarding the conduct of the Citizenship Judge is uncontroverted, and
that the respondent elected not to cross-examine him on his affidavit. As a
consequence, Dr. Shahein submits that I must accept his evidence on this
point. I do not agree.
[21]
An allegation of bias, especially an allegation
of actual, as opposed to apprehended, bias, is a serious allegation. Indeed, it
challenges the very integrity of the adjudicator whose decision is in issue. As
a consequence, the threshold for establishing bias is high: R. v. S. (R.D.),
[1997] 3 S.C.R. 484, at para. 113, 151 D.L.R. (4th) 193.
[22]
In contrast to the situation that confronted the
Court in Sols R. Isabelle Inc. v. Stikeman Elliott LLP, 2011 FC 59, 92
C.P.R. (4th) 83, a case relied upon by Dr. Shahein, there are good reasons
for questioning the truthfulness of the facts adduced by Dr. Shahein in
his affidavit. As was noted in the previous section of these reasons, there
were numerous inconsistencies in the evidence that Dr. Shahein has
provided in support of his citizenship application, including statements in his
affidavit that were inconsistent with other evidence that had been provided by
him. In light of these problems, Dr. Shahein has not satisfied me that he
is a reliable witness.
[23]
In addition, Dr. Shahein’s wife was present
at the hearing, and witnessed at least some of the Citizenship Judge’s alleged
misconduct. Dr. Shahein did not, however, provide an affidavit from his
wife in connection with his application for leave to corroborate his
allegations. Further, Dr. Shahein failed to rectify this omission after leave
was granted, despite the respondent having flagged this deficiency in his
responding submissions at the leave stage. This is a troubling omission: Li
v. Canada (Minister of Citizenship and Immigration), 2013 FC 1091, at para.
9, [2013] F.C.J. No. 1183.
[24]
Finally, the law requires that an allegation of
bias be raised at the earliest opportunity: Iqbal v. Canada (Minister of
Citizenship and Immigration), 2012 FC 1338, at
para. 31, 421 F.T.R. 159. Dr. Shahein failed to do
so here.
III.
Conclusion
[25]
For these reasons, the application is dismissed.
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