Docket: T-1300-15
Citation:
2016 FC 97
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, January 27, 2016
PRESENT: The Honourable
Mr. Justice LeBlanc
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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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MAHER BACCOUCHE
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respondent
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JUDGMENT AND REASONS FOR JUDGMENT
I.
Introduction
[1]
The Minister of Citizenship and Immigration (the
Minister), as permitted under section 22.1 of the Citizenship Act, RSC (1985), c. C29 (the Act), is
appealing a decision by a citizenship judge, dated July 8, 2015, to allow
the respondent’s citizenship application.
II.
Context
[2]
The respondent is a citizen of Tunisia. He
entered Canada on March 24, 2006 and received permanent resident status on
February 3, 2009. He filed a citizenship application on April 16,
2011.
[3]
As stipulated in section 5 of the Act when he
made his application, in order for his application to be accepted, the
respondent must show, among other things, that he lived in Canada for at least
three of the four years (or 1095 days) before the application, with the
understanding that each day lived in Canada before he received permanent
resident status, specifically, the period from April 16, 2007 to
February 3, 2009, would only count for a half day.
[4]
The citizenship judge was satisfied that during
the fouryear period relevant to the citizenship application, specifically the
period from April 16, 2007 to April 16, 2011 (the relevant period),
the respondent was physically present in Canada for 1098 days, three days more
than the 1095day threshold prescribed by the Act, and that he therefore
fulfilled the residency requirement. The judge was therefore satisfied:
- That the respondent was finally able to produce a copy of a
valid passport from the relevant period;
- That he was able to count on his thenspouse for financial
support during his periods of unemployment during the relevant period;
- That his unreported work for Air Canada, and his likewise
unreported absences related to that work, would not adversely affect his
success with his citizenship application; and
- That there was enough “active presence
evidence” on file to show that he lived in Canada during the
relevant period.
[5]
The Minister considers the citizenship judge’s
decision to be unreasonable for essentially two reasons.
[6]
Given that in this Court’s jurisprudence, of the
three tests available to citizenship judges to evaluate whether a citizenship
applicant fulfils the residency requirement, the citizenship judge seems to
have opted for the physical presence test, without expressly stating this, the
Minister maintains that the judge can only make the decision she made based on
clear and convincing evidence. However, the evidence that supposedly
establishes the respondent’s physical presence for the first half of the
relevant period, from April 2007 to August 2009, is almost nonexistent
and the judge could not remedy this on the basis of the respondent’s
explanations during his interview without, at the very least, explaining in her
decision to what extent this significant evidentiary gap had been addressed.
According to the Minister, the judge should have been more vigilant and alert
in this regard, given the respondent’s unreported absences, which, the judge
admits, “raised doubts about the authenticity of the
respondent’s absences.”
[7]
The Minister also argues that the citizenship
judge was negligent in applying the physical presence test, when she considered
the respondent’s “Canadianization” journey, and
then included in her analysis considerations that were not relevant to this
test. The Minister concludes that the judge’s decision was irreconcilably
flawed.
III.
Issue and standard of review
[8]
The issue in this case is whether the
citizenship judge, by concluding that Mr. Baccouche fulfilled the
residency requirement, made an error that would justify judicial intervention
under section 18.1 of the Federal Courts Act.
[9]
It is well established that the standard of
review applicable to the decision made by the Minister is the standard of
reasonableness, as defined in Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190, 2008 SCC 9 [Dunsmuir]; See also: Saad v. Canada (Citizenship and
Immigration), 2013 FC 570, at paragraph 18, 433 FTR 174; Canada(Citizenship
and Immigration) v. Baron, 2011 FC 480, at paragraph 9, 388 FTR 261; Canada
(Citizenship and Immigration) v. Diallo, 2012 FC 1537 at paragraph 13, 424
FTR 156; Huang v. Canada (Citizenship and Immigration), 2013 FC 576, at
paragraphs 24 to 26; Canada (Citizenship and Immigration) v. Bayani,
2015 FC 670, at paragraph 17).
[10]
Based on this standard of review, the Court must
ensure that the judge’s decision meets the test of clarity, precision and
intelligibility and that it is supported by acceptable evidence that can be
justified in fact and in law (Dunsmuir, previously cited at paragraph
47).
IV.
Analysis
[11]
It is well established that the person applying
for citizenship bears the onus of proving that the conditions set out in the
Act, specifically, with regard to residence, have been met (El Falah v. Canada
(Citizenship and Immigration), 2009 FC 736, at paragraph 21 [El Falah];
Dachan v. Canada (Citizenship and Immigration), 2010 FC 538, at
paragraph 22). Clear and convincing evidence is required (Atwani v. Canada
(Citizenship and Immigration), 2011 FC 1354, at paragraph 12). Canadian
citizenship is a privilege that should not be granted lightly (Canada
(Citizenship and Immigration) v. Elzubair, 2010 FC 298, at paragraphs 19 to
21; Canada (Citizenship and Immigration) v. El Bousserghini, 2012
FC 88, at paragraph 19, 408 FTR 9; Canada (Citizenship and Immigration) v.
Dhaliwal, 2008 FC 797, at paragraph 26; Abbas v. Canada (Citizenship and
Immigration), 2011 FC 145, at paragraph 8).
[12]
When the citizenship judge chooses the physical
presence test to determine whether the residency requirement has been met, more
evidence is required than simply claiming to have been physically present in
Canada. As Mr. Justice Yves de Montigny, now a Federal Court of Appeal Judge,
said in the El Falah case that has been cited under similar
circumstances, the citizenship judge cannot rely on the applicant’s claims
alone. He must also “verify the applicant’s actual
presence in Canada during the periods when the applicant claims that he was not
outside the country” to avoid “blindly accepting
the submissions made to him as to the number of days of absence from or
presence in Canada.” (El Falah, at paragraph 21). As Montigny J.
stated, if, as is the case here, one relies on a strict counting of days during
which the applicant must be present in Canada, it follows that the citizenship
judge “can and must ensure that the applicant was
actually on Canadian soil during the period when he claims to have been”
(El Falah, at paragraph 21).
[13]
In this case, the citizenship judge recognized
that the “active presence evidence” provided by
the respondent “was more applicable to the period from
2009 to 2011 than to the period from 2007 to 2009.” According to the
Court file, the only evidence of his physical presence in the country that the
respondent produced is contained in the following documents:
- The history of entries into the country from the Canada Border
Services Agency, which shows a single entry into the country in July 2008;
- A statement from the Laurentian Bank covering only the period
from May 1 to 31, 2007;
- A confirmation of medical insurance for the period from
October 26 to November 4, 2007;
- Copies of pages from passport Z788349, indicating that this
passport was delivered in Montreal on August 22, 2008; and
- Copies of pages from passport Z039970, showing an entry into
the country on May 22, 2007, a departure on June 19, 2008, and
an entry on July 21, 2008.
[14]
I agree with the Minister that these documents
are clearly insufficient to reasonably support the respondent’s claims to have
been physically present in Canada during the first half of the relevant
period. As the Minister noted, there is practically no trace of the respondent
in Canada, aside from the few dates contained in these pieces of evidence.
[15]
With such scant evidence of presence, at least
as concerns the first half of the relevant period, which is a significant
period of time, the citizenship judge cannot, without usurping the Minister’s
duties, blindly rely on the submissions made to her by the respondent as to the
number of days of absence from or presence in Canada. In my opinion, under the
circumstances, she should have insisted on more solid evidence of actual
presence or, at least, explained how the explanations provided by the
respondent addressed the lack of evidence of his active presence for the period
from April 2007 to August 2009, without referring only to the respondent’s
credibility. The respondent bears the burden of proving his physical presence
in the country with “clear and convincing”
evidence.
[16]
In Canada (Citizenship and Immigration) v.
Jeizan, 2010 FC 323, 386 FTR 1 [Jeizan], the Court points out that a
decision is sufficiently motivated when the reasons are clear, accurate and
intelligible, and when it indicates understanding of the points raised by the
evidence and indicates why the decision was rendered (Jeizan, at
paragraph 17; see also: Lake v. Canada (Minister of Justice),
2008 SCC 23, [2008] 1 S.C.R. 761, at paragraph 46; Mehterian v. Canada
(Minister of Employment and Immigration), [1992] FCJ No. 545 (FCA); VIA
Rail Canada Inc v. Canada (National Transportation Agency), [2001] 2
FC 25 (FCA), at paragraph 22).
[17]
With all due respect, this aspect is lacking
because the decision in question does not intelligibly and clearly explain how
and to what extent the clearly insufficient nature of the evidence provided by
the respondent for the period from April 2007 to August 2009 was satisfactorily
addressed by the respondent’s explanations during his interview with the
citizenship judge.
[18]
The respondent, who is representing himself,
claims he submitted to the citizenship judge additional pieces of evidence in
connection with the period from April 2007 to August 2009, that he showed this
evidence to the Minister when the application for judicial review was filed,
and that he even tried, unsuccessfully, to submit this evidence to the Court’s
file in the few weeks before the judicial review hearing.
[19]
The respondent is, undoubtedly, acting in good
faith. However, I do not have this additional evidence in front of me, nor
does the decision being reviewed mention it. Other than his written
submissions, the respondent has not added anything to the file other than a
motion for extension of time to produce his written appearance. This was his
attempt to provide additional pieces of evidence, but his efforts were
unsuccessful. In any case, the Certified Tribunal Record in the Court file
contains nothing else relating to the period from April 2007 to August 2009,
other than the documents I referred to in paragraph 13 of these reasons for
judgment. The situation is certainly aggravating for the respondent, who
believes he should be granted Canadian citizenship, but I cannot resolve this
without ignoring the most basic principles governing the Minister’s actions in
this case.
[20]
Moreover, I also share the Minister’s concern
that the citizenship judge supported her decision by taking into consideration
the respondent’s “Canadianization” journey,
which is more related to the two qualitative tests for reviewing the residency
criteria than to the physical presence test. The judge stated the following:
The respondent spoke frankly about the
differences he appreciated between Canadian democracy and Tunisian “dictatorship.”
He said, “In Canada, you are not a number.” He made particular mention of his
relief at being able to interact with the police in Canada without fear of
corruption. He said that, since arriving in Canada, he has made it a point of
honour to contest each of his traffic violations, in order to participate in
the municipal Court’s democratic process, and he proudly stated that he has
sometimes been able to get himself acquitted by using his knowledge of
engineering. I find that this testimony convincingly illustrates the
respondent’s “Canadianization” journey since his arrival here nine years ago.
[21]
This passage shows that the citizenship judge
confirmed her decision that the respondent had been physically present in
Canada during the minimum period required by section 5 of the Act by
considering a nonrelevant factor. At the same time, this shows that she did
not properly understand and apply the residency test she claimed to have
applied at the very end of her reasons for judgment, which is effective
physical presence. Furthermore, I note that the example of the respondent’s “Canadianziation” efforts offered by the Judge
relates to events that occurred after the relevant period. All this supports
intervention by the Court.
[22]
The Minister’s application for judicial review
is allowed. In accordance with paragraph 14(1) of the Act, the application
will be returned to the Minister or, if necessary, to another citizenship judge
for reevaluation, with the understanding that the respondent will have the
right to provide new evidence for this evaluation.
[23]
No question is certified.
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