Docket: T-1765-15
Citation:
2016 FC 779
St. John’s, Newfoundland and Labrador, July 26, 2016
PRESENT: The
Honourable Madam Justice Heneghan
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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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OLEKSANDR
PAKHARENKO
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Respondent
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AMENDED JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
The Minister of Citizenship and Immigration (the
“Applicant Minister”) seeks judicial review of the decision of Citizenship
Judge Angelo Persichilli (the “Citizenship Judge”), dated September 23, 2015,
approving the citizenship application of Mr. Oleksandr Pakharenco (the
“Respondent”) pursuant to subsection 5(1) of the Citizenship Act,
R.S.C., 1985, c. C-29 (the “Act”).
II.
EVIDENCE
[2]
The evidence in this proceeding consists of the
Certified Tribunal Record and certain affidavits as follows:
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the affidavit of Patricia D’Agnostino,
Citizenship Officer, sworn on November 10, 2015 filed on behalf of the
Applicant Minister;
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the affidavit of the Respondent, sworn on
December 16, 2015;
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the affidavit of Oleksandr Korolyov, sworn
December 15, 2015, filed on behalf of the Respondent;
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the affidavit of Olha Kachmar, legal assistant
for the Respondent’s Counsel, sworn December 18, 2013; and
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the further affidavit of Olha Kachmar, sworn on
February 29, 2016.
III.
BACKGROUND
[3]
The following facts are taken from the evidence
filed in this application for judicial review.
[4]
The Respondent is a citizen of Ukraine. He
became a permanent resident of Canada on July 5, 2003 and entered Canada on the
same day.
[5]
When he was unable to find work in Canada,
the Respondent returned to Ukraine in December 2003. He remained there until
November 2006.
[6]
The Respondent came back to Canada on November
26, 2006 where he lived rent free in the home of a family friend.
[7]
The Respondent did not work in Canada from
November 2006 to July 2013, when he was employed as a sales consultant. Between
November 2006 and July 2013 while not employed, he held some business
meetings on behalf of his family company, the Ukrainian Association “Plastics”,
in Canada. He claimed to receive financial support from his family in Ukraine
as well as from funds in his Ukrainian bank account and income from real estate
he owns in Ukraine.
[8]
The Respondent submitted an application for
Canadian citizenship on August 16, 2011. The relevant four year period for the
purposes of assessing residency under paragraph 5(1)(c) of the Act is August
16, 2007 to August 16, 2011 (the “relevant period”).
[9]
In his application, the Respondent indicated he
had not spent any time outside of Canada during the relevant period, that is
August 16, 2007 to August 16, 2011.
[10]
On November 8, 2012, the Respondent completed a
Residence Questionnaire as part of his citizenship application. In this
questionnaire, he said that he was unemployed in Canada but was involved in a
family business, owned real estate in Ukraine, and that he filed income
tax returns in Ukraine every year of the relevant period. The Respondent also
said he did not have any absences from Canada during the relevant period.
[11]
On January 22, 2013, the Respondent submitted an
Integrated Customs Enforcement System Traveller History Report (“ICES Report”),
issued by the Canadian Border Services Agency dated December 18, 2012, to
Citizenship and Immigration Canada. This report showed the Respondent entered
Canada from the United States on September 10, 2007 at the Peace Bridge in Fort
Erie, Ontario using his Permanent Resident Card. In his affidavit filed
in this proceeding, the Respondent deposed that he provided his passport to
American border officials.
[12]
A copy of one of the Respondent’s passports,
found in the Certified Tribunal Record, contains a note dated October 31, 2014,
which says “OSRP previous ppt kept by govt per FRC
notes”. This copy of the passport shows an expiry date in December 2021.
[13]
By letter dated October 31, 2014, a Citizenship
Officer requested additional documentary evidence to support the Respondent’s
residency in Canada, specifically Notices of Assessment from the Canada Revenue
Agency and a provincial personal health claim summary for the relevant period.
The Officer also asked for explanations as to how the Respondent supports
himself, details about his living arrangements and further explanation
regarding his trip to the United States.
[14]
The Respondent replied by letter dated November
2, 2014 and included the following documents:
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Notices of Assessment for the tax years 2007 to
2011;
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a letter from the Expobank dated May 6, 2009
which shows a balance of EUR 70,000;
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TD Bank account statements covering the periods
August 31, 2008 to November 30, 2008, May 31, 2011 to June 30, 2011, July 31,
2011 to August 31, 2011;
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a copy of his driver’s licence issued August 23,
2011;
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a copy of his permanent resident card;
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a copy of a photo dated August 20, 2011;
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letters from individuals confirming his
residence in Canada; and
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a letter from CIC dated March 5, 2014 stating
the Respondent complied with the residency requirements under section 28 of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[15]
The Respondent did not include a provincial
health claim summary (“OHIP report”) because he said he did not receive any
medical services during the relevant period. However, he included a doctor’s
note dated August 1, 2013 about results from an allergy test. The test was done
outside the relevant period. The note was also dated outside the relevant
period.
[16]
The Respondent explained he used the money in
his Ukrainian bank account to support himself in Canada. He also said that he
lived with his father’s friend for the relevant period rent-free.
[17]
The Respondent further explained that the ICES
report shows that he returned to Canada on September 10, 2007, contrary to the
position stated in the October 31, 2014 letter from the Citizenship Officer. He
said this was a two day trip, without giving details.
[18]
The ICES report shows that the Respondent
entered Canada at the Peace Bridge in Fort Erie, Ontario.
[19]
On December 17, 2014, a Citizenship Officer
completed a file preparation and analysis template. That Officer recorded
concerns that during the relevant period the Respondent declared no income in
Canada, did not produce an original passport, and did not pay rent. The Officer
also was concerned that the Respondent did not request an OHIP report.
[20]
The Officer noted that there were photocopies of
two Ukrainian passports on file. The first, issued on June 13, 1998, expired on
June 13, 2008. The second showed an issuance date of December 12, 2011 and an
expiry date of December 11, 2021. The Officer observed that a note on file
indicated that that the passport expiring in June 2008 was “kept” by the government.
[21]
It is not clear from the Citizenship Officer’s
December 17, 2014 report which government held the Respondent’s passport.
[22]
The Respondent filed a certificate from the
Senior Inspector of the Minister of Internal Affairs of Ukraine, dated September
18, 2015. The certificate provides that the Respondent wrote to the Ministry of
Internal Affairs of Ukraine on November 28, 2011 about the loss of his passport
that was issued on June 13, 1998.
[23]
A hearing was held before the Citizenship Judge
on September 22, 2015.
IV.
DECISION UNDER REVIEW
[24]
The Citizenship Judge found the relevant four
year period to be August 16, 2007 to August 16, 2011. He identified the issue
before him as whether the Respondent met the residency requirement under
paragraph 5(1)(c) of the Act. He found that the Respondent’s passport covered
all four years of the relevant period. He said the passport and ICES report did
not raise questions about the Respondent’s statements.
[25]
The Citizenship Judge considered the
Respondent’s evidence about his life in Canada.
[26]
The Citizenship Judge found that, contrary to
the notes in the Respondent’s file, the passport with the original expiry date
of June 2008 was valid past the end of the relevant period because it was
extended to November 2016. The Citizenship Judge concluded that that passport
was lost in Kiev, Ukraine, and not repossessed by the government.
[27]
The Citizenship Judge referred to the
Citizenship Officer’s concerns over lack of sufficient documentation to
establish physical residence in Canada. He found that most of these concerns were
addressed at the hearing. The Citizenship Judge concluded that he was left with
no argument to dispute the Respondent’s statement about the numbers of days he
was physically present in Canada.
[28]
The Citizenship Judge referred to the
residency test set out in Re Pourghasemi (1993), 19 Imm. L.R. (2d) 259
(F.C.T.D.). He found that, on a balance of probabilities, the Respondent had shown
that he had resided in Canada for the number of days claimed. Accordingly, he
found that the Respondent met the residency requirements pursuant to paragraph
5(1)(c) of the Act.
V.
SUBMISSIONS
A.
The Applicant Minister’s Submissions
[29]
The Applicant Minister submits that the role of
a Citizenship Judge is to address deficiencies in the evidence relating to the
sufficiency of an applicant’s residency in Canada during the relevant period.
He argues that, while the hearing is not an adversarial proceeding, a
Citizenship Judge is required to analyze documents to determine the veracity of
the residency claim.
[30]
The Applicant Minister says that the onus is on
the Respondent to provide objective evidence to demonstrate he satisfies the
residency requirement, relying on the decisions in Vega v. Canada
(Minister of Citizenship and Immigration), 2009 FC 1079 at paragraph 13 and
Canada (Minister of Citizenship and Immigration) v. Diallo (2012), 424
F.T.R. 156 at paragraph 21.
[31]
The Applicant Minister, relying on the decision
in Canada (Minister of Citizenship and Immigration) v. Raphaël (2012), 417
F.T.R. 177 at paragraph 24, argues that the Citizenship Judge erred by failing
to explain how he resolved the gaps in the evidence. He submits that the
assessment of the evidence by the Citizenship Judge is not transparent and
fails to meet the standard of reasonableness.
[32]
The Applicant Minister also argues that the
Citizenship Judge erred by accepting the Respondent’s claim that he only left
Canada for two days during the relevant period, despite the paucity of
objective evidence of residency. He argues that the Citizenship Judge failed to
recognize that not all entries into Canada are recorded in the ICES report and
that report alone is insufficient to establish residency; see the decisions in Zhao
v. Minister of Citizenship and Immigration, 2016 FC 207 and Abu-Taleb
v. Minister of Citizenship and Immigration, 2015 FC 1389.
[33]
The Applicant Minister further submits that the
Citizenship Judge erred in determining that the Respondent’s passport covered
all four years of the relevant period. Only a photocopy of the passport issued
June 13, 1998 is on file. He argues that there was no way to ascertain when
that copy was made nor is it possible to assess the Respondent’s movements
during the relevant period.
[34]
The Applicant Minister argues that the copy of
the Respondent’s passport on file contains no visa or entry stamp confirming
his trip to the United States in 2007. He submits that Ukrainian citizens must
obtain a visa to enter the United States. He argues that the Citizenship Judge
erred by failing to consider this missing document.
[35]
The Applicant Minister also submits that the Citizenship
Judge failed to explain why he accepted the Respondent’s story that the
passport was lost rather than repossessed.
[36]
Finally, the Applicant Minister submits that the
Citizenship Judge erred in finding that the Respondent met the residency
requirement in the absence of evidence of employment, rent or health services
used in the relevant period and very limited evidence of Canadian banking
activities. He argues that there is no evidence as to how the Respondent
accessed his Ukrainian bank account to support himself in Canada.
B.
The Respondent’s Submissions
[37]
The Respondent submits that the Citizenship
Judge’s decision is reasonable.
[38]
He argues that there was no evidence before the
Citizenship Judge that visitor visas are required for Ukrainian passport
holders to enter the United States and that he should not be faulted for not
having an entry stamp in his passport as he has no control over border
officers.
[39]
The Respondent further submits that this issue
was not raised before the Citizenship Judge.
[40]
The Respondent argues the decision of the
Citizenship Judge was supported by a tenable explanation and there is no
evidence before the Citizenship Judge to contradict his conclusion.
VI.
DISCUSSION
[41]
Paragraph 5(1)(c) of the Act, as it existed on
the date the Respondent submitted his application for Canadian citizenship,
provides as follows:
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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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(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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[42]
The question of whether an applicant has met the
residency requirements under the Act is a question of mixed fact and law,
reviewable on the standard of reasonableness; see the decisions in Huang v.
Canada (Minister of Citizenship and Immigration) (2013), 22 Imm. L.R. (4th)
180 (F.C.) at paragraphs 26-27, and Canada (Minister of Citizenship and
Immigration) v. Abdallah (2012), 417 F.T.R. 13 (F.C.) at paragraph 8.
[43]
The reasonableness standard requires that the
decision be justifiable, transparent, intelligible, and fall within a range of
possible, acceptable outcomes; see the decision in Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190 at paragraph 47.
[44]
Reasons for a decision meet the standard of
reasonableness when they are clear, precise and intelligible, and when they
state why the decision was reached; see Dunsmuir, supra.
[45]
In its decision in Newfoundland and Labrador
Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3
S.C.R. 708 at paragraph 15, the Supreme Court of Canada said the following:
In assessing
whether the decision is reasonable in light of the outcome and the reasons,
courts must show “respect for the decision-making process of adjudicative
bodies with regard to both the facts and the law” (Dunsmuir, at para.
48). This means that courts should not substitute their own reasons, but they
may, if they find it necessary, look to the record for the purpose of assessing
the reasonableness of the outcome.
[46]
I agree with the Applicant Minister that the
decision is unreasonable because it is not transparent. The decision does not
address the inadequacy of the evidence nor does the record support the
Citizenship Judge’s conclusion.
[47]
Neither is the decision justifiable or
intelligible since it does not allow a reviewing court to determine how the
Citizenship Judge was satisfied that residency was established despite the lack
of independent documentary evidence.
[48]
There is no evidence in the record to substantiate
the Respondent’s statement that he only travelled outside Canada for two days
in 2007. There is also no evidence to establish the Respondent received
financial support from his parents in Ukraine or when his passport’s validity
was extended from June 2008 to November 2016.
[49]
I agree with the Applicant Minister that the
Citizenship Judge failed to explain why he preferred the evidence of the
Respondent about his lost passport over the notes on file which state that
the passport was held by the government.
[50]
Considering the evidence in the Certified
Tribunal Record which was before the Citizenship Judge, I am satisfied that the
decision fails to meet the relevant standard of review. The Citizenship Judge
made numerous errors as identified above, which warrant judicial intervention.
[51]
In the result, this application for judicial
review is allowed and the matter is remitted to a different decision maker
for redetermination. There is no question for certification arising.
[52]
The Applicant Minister does not seek costs in
this application for judicial review. Pursuant to my discretion under Rule 400
of the Federal Courts Rules, SOR/98-106, I make no order as to costs.
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