Docket: T-208-17
Citation:
2017 FC 821
Ottawa, Ontario, September 11, 2017
PRESENT: The
Honourable Madam Justice Strickland
|
BETWEEN:
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Applicant
|
|
and
|
|
RABBIYA NASIR
ABIDI
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision dated January 23, 2017, in which a citizenship judge determined the
Respondent met the residence requirements of s 5(1)(c) of the Citizenship
Act, RSC 1985, c C-29 (“Citizenship Act”). The Applicant, the
Minister of Citizenship and Immigration Canada (“Minister”), brings this
application pursuant to s 21.1(3) of the Citizenship Act.
[2]
The Respondent is a citizen of Pakistan. She
became a permanent resident of Canada on December 22, 2004, and on March 16,
2012, applied for Canadian citizenship. Accordingly, the relevant period for
determining whether she met the residence requirement pursuant to s 5(1)(c) of
the Citizenship Act was March 16, 2008 to March 16, 2012.
[3]
In her citizenship application, the Respondent
declared she was physically present in Canada for 1319 days during the relevant
period and had five absences totaling 41 days. She submitted a Residence
Questionnaire dated March 10, 2013 with supporting documentation. Initially, by
way of a File Preparation and Analysis Template - Short, dated September 3,
2015, a reviewing citizenship officer concluded the Respondent met the
requirements of s 5(1)(c) of the Citizenship Act. Subsequently, in a
File Preparation and Analysis Template - Long, dated November 22, 2016, a
different reviewing officer (“Citizenship Officer”) concluded the Respondent
was absent during the relevant residence period for 481 days and that she was
present in Canada for 979 days, resulting in an undeclared shortfall of 116
days. The Citizenship Officer recommended a hearing before a Citizenship Judge
to address identified residence concerns.
[4]
On January 23, 2017, the Citizenship Judge
determined that the Respondent provided sufficient proof to show that she had
at least 1193 days of physical presence in Canada and met the physical presence
requirement of s 5(1)(c) of the Citizenship Act.
Decision Under Review
[5]
The Citizenship Judge stated that the
application for citizenship was approved because the Respondent provided sufficient
reliable evidence to establish, on a balance of probabilities, that she met and
exceeded the physical presence requirements of s 5(1)(c) of the Citizenship
Act.
[6]
The Citizenship Judge acknowledged the concern
raised by the Citizenship Officer which pertained to the Respondent’s
credibility, specifically, with an earlier investigation for possible
misrepresentation as the Respondent had not declared a child in her immigration
application, as well as the Citizenship Officer’s concerns pertaining to his or
her inability to verify re-entry following some of the Respondent’s declared
absences; that the Respondent’s declared income was far less than what was
expected for her work as a physician in Canada; and, that the Respondent had a
lack of active indicators supporting her application. The Citizenship Judge
found that the Respondent had provided sufficient proof to satisfactorily
resolve these concerns.
[7]
The Citizenship Judge noted the Respondent had
the burden of proving, on a balance of probabilities, that she met the
conditions set out in the Citizenship Act, in particular, the residence
requirements (Saqer v Canada (Minister of Citizenship and Immigration),
2005 FC 1392 at paras 20-21) and was required to show when she was actually
absent and for how long (Pornejad v Canada (Citizenship and Immigration),
2014 FC 455 at para 9). Further, that a passport by itself does not constitute
irrefutable evidence of physical presence in Canada (Haddad v Canada
(Citizenship and Immigration), 2014 FC 976 at para 26).
[8]
The Citizenship Judge stated that he was
conducting a three step analysis. First, determining the number of declared
absences and whether the departure and return dates of those absences could be
verified on a balance of probabilities. Second, determining whether there was
evidence of undeclared trip(s). Third, determining on a balance of
probabilities the duration of any undeclared trip(s).
[9]
As to declared absences, the Respondent declared
the same absences in her application form as in the Residence Questionnaire.
As a result, the Citizenship Judge found the Respondent declared five trips.
[10]
The Citizenship Judge found he was able to
verify all five departure dates on a balance of probabilities as follows:
i.
March 16, 2008 - the Citizenship Judge noted the
Respondent was absent from Canada at the start of the relevant period. He
therefore assigned March 16, 2008 as the departure date of the first absence;
ii.
April 7, 2009 - the Respondent’s passport
contained an entry stamp to Pakistan for April 8, 2009. As travel to
Pakistan generally involves an overnight flight from Canada, the Citizenship
Judge established April 7, 2009 as the departure date for the second absence;
iii.
October 4, 2009 - a passport entry stamp showed
the Respondent entered the United States of America (“US”) on October 4,
2009. The Citizenship Judge therefore accepted that date as the departure date
for the third absence;
iv.
February 26, 2010 - a passport stamp showed the
Respondent entered Pakistan again on February 27, 2010. The Citizenship Judge
therefore established February 26, 2010 as the departure date for the fourth
absence;
v.
December 6, 2011 - a passport entry stamp showed
the Respondent entered the United Arab Emirates on December 7, 2011. As
travel to the United Arab Emirates generally involves an overnight flight from
Canada, the Citizenship Judge established December 6, 2011 as the departure
date for the fifth absence.
[11]
As to return dates, the Citizenship Judge found
that he was able to verify on a balance of probabilities the return date for
three of the five declared absences. An Integrated Customs Enforcement System
(“ICES”) report dated September 10, 2014 showed the Respondent entered Canada
three times during the relevant period, and all three entries matched her
declared return dates.
[12]
The Respondent also declared a return to Canada
on May 10, 2008. At the hearing before the Citizenship Judge, she explained
that she had returned to Canada to obtain a license to practice medicine in
Ontario. As a result, she mainly stayed at the home of a relative to prepare
for the medical board exams. She received her medical certificate from the
College of Physicians and Surgeons of Ontario on September 4, 2008. The
Citizenship Judge stated that the certificate verified the Respondent’s testimony
at the hearing before him which testimony was forthright, consistent, and
credible. However, the Respondent recognized that she did not have any active
indicators to show her presence in Canada from May 10 to the end of August
2008. A letter from the administrator of the Castlemore Health Centre in
Brampton, Ontario, confirmed she began her practice there in September 2008.
Further, an invoice showed she started paying the necessary fees for practice
insurance in September 2008. At the hearing, she explained that she began her
practice on September 15, 2008. Given this, the Citizenship Judge set
September 14, 2008, and not May 10, 2008 as the return date for this
absence.
[13]
The Respondent also declared a return from the US
on October 11, 2009. The Citizenship Judge reviewed reimbursements from the
Ontario Ministry of Health for 2009, which showed she received $14,088 in
October of that year; $18,004 in November, and $21,926 in December. She
received $27,000 in January 2010. The Citizenship Judge found the Respondent
was clearly at her medical practice during this time. Further, she had
explained that she had reported travelling to the US to attend a family
wedding. As the Respondent was forthright, consistent, and credible with her
testimony at the hearing, and given the evidence that she was working at her
medical practice in October 2009, the Citizenship Judge accepted October 11, 2009
as the return date as declared.
[14]
The Citizenship Officer found no evidence of an
undeclared trip and the Citizenship Judge agreed, concluding on a balance
of probabilities there were no undeclared absences pertaining to the
Respondent’s application. As a result, he did not have to complete the third
step of the analysis.
[15]
The Citizenship Judge found, on a balance of
probabilities, that the Respondent was absent 267 days stemming from five
absences:
•
March 16, 2008 (start of the relevant period) to
September 14, 2008: 182 days;
•
April 7, 2009 to May 3, 2009: 26 days;
•
October 4, 2009 to October 11, 2009: 7 days;
•
February 27, 2010 to March 21, 2010: 22 days;
and
•
December 6, 2011 to January 5, 2012: 30 days.
[16]
Further, that she had provided sufficient proof
to show at least 1193 days of physical presence in Canada to support her
application.
[17]
The Citizenship Judge acknowledged the
Citizenship Officer’s concern regarding the amount of income the Respondent
declared in her Notice of Assessment from the Canada Revenue Agency, being that
the amount was too low for the period when the Respondent claimed to practice
medicine in Canada. The Citizenship Judge found the Respondent was reimbursed
$21,705 for two months in 2008, $197,417 for 2009, $254,676 for 2010, $257,667
for 2011, and $158,713 for the first nine months of 2012. This was consistent
with her claim that she worked as a medical doctor from September 2008 to the
end of the relevant period. The Respondent had also explained that it was
common practice for doctors to incorporate themselves and for medical fees
billed to be paid to the corporation. In this case, the Respondent’s
corporation paid her share of the clinic’s costs and paid an income to her husband,
who was part of the corporation, thereby reducing her own personal income. The
Citizenship Judge found the Respondent adequately explained her reported
income for tax purposes and that her reported income did not undermine her
credibility for the citizenship application. The Citizenship Judge also
concluded the Applicant provided sufficient active indicators of her physical
presence in Canada based on the documentation of her employment as a physician
from September 15, 2008 to the end of the relevant period.
[18]
The Citizenship Judge again stated that the
Respondent was forthright, consistent, and credible at the hearing and, given
this, concluded on a balance of probabilities that she provided sufficient
documentary evidence to show her claimed presence in Canada.
[19]
Finally, the Citizenship Judge noted the
Respondent was investigated for possible misrepresentation in 2011. However,
the investigation was closed and retired on July 30, 2014 with the Citizenship
Officer noting the allegations against the Respondent would not be pursued. As
a result, the Citizenship Judge stated that neither the allegation nor the
ensuing investigation affected his decision.
Issues and Standard of Review
[20]
In my view, one issue arises in this matter,
being whether the Citizenship Judge’s determination that the Respondent met the
residence requirements of the Citizenship Act is reasonable.
[21]
The Minister submits, and I agree, that the
question of whether or not an applicant for citizenship has met the residence
requirements of the Citizenship Act is to be reviewed on the
reasonableness standard (Huang v Canada (Citizenship and Immigration),
2013 FC 576 at paras 26-27; Canada (Citizenship and Immigration) v Abdallah,
2012 FC 985 at para 8; Canada (Citizenship and Immigration) v Jeizan,
2010 FC 323 at para 12).
[22]
Under the reasonableness standard, the Court
must be satisfied that the decision making bears the qualities of
justification, transparency, and intelligibility and that the decision falls “within a range of possible, acceptable outcomes which are
defensible with respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47). Deference is owed to the findings of a citizenship
judge who is better positioned to make the factual determination as to whether
residency has been established (Martinez-Caro v Canada (Citizenship and
Immigration), 2011 FC 640 at para 46 (“Martinez-Caro”). The citizenship
judge’s findings regarding credibility also draw significant deference (Martinez-Caro
at para 46; Canada (Citizenship and Immigration) v Sukkar, 2017
FC 693 at para 20 (“Sukkar”)).
Positions of the Parties
Minister’s Position
[23]
The Minister submits the Citizenship Judge erred
in his application of the physical presence test as set out in Pourghasemi
(Re) (1993), 62 FTR 122 (TD) (“Re Pourghasemi”); the
Citizenship Judge’s conclusion on the residence requirement under s 5(1)(c) of
the Citizenship Act was not supported by the evidence before him; and, the
Citizenship Judge’s reasons are inadequate. In this regard, the Minister
refers to the Citizenship Officer’s concerns in the File Preparation Analysis
Template - Long. The Minister submits these concerns indicate a lack of
evidence verifying the accuracy of the Respondent’s declared absences from
Canada and supported the Citizenship Officer’s recalculation of the days the
Respondent was present in Canada. The Minister submits the Citizenship Judge
did not address any of the Citizenship Officer’s concerns or explain what part
of the Respondent’s testimony resolved those concerns and established her
residence in Canada. Further, the Citizenship Judge failed to conduct any
discernable analysis of the Citizenship Officer’s concerns.
[24]
The Minister submits the Citizenship Judge erred
in accepting the Respondent’s testimony as to her presence in Canada, in the
absence of other confirming documentary evidence, thereby misapplying Re
Pourghasemi. Further, the Citizenship Judge failed to verify whether the
Respondent was in Canada during the periods claimed, and erred by relying on
her testimony alone (El Falah v Canada (Citizenship and Immigration),
2009 FC 736 at para 21 (“El Falah”)). The Minister also submits
the Citizenship Judge erred by setting his own departure and return dates,
which had no evidentiary foundation and does not satisfy the first step of the
analysis. The Citizenship Judge’s decision is unreasonable because the
Respondent failed to meet her onus of providing sufficient objective evidence
that she satisfied the residence requirement (Abbas v Canada (Citizenship
and Immigration), 2011 FC 145 at paras 8-9, 11).
[25]
The Minister also submits the Citizenship Judge
erred in finding the Respondent was in Canada in September 2008. Further, the
Citizenship Judge noted an entry stamp into Pakistan for April 8, 2009 and, on
that basis, determined the Respondent left Canada on April 7, 2009. This
finding was critically flawed as the Citizenship Judge ignored that the
passport was issued to the Respondent in Pakistan on February 13, 2009, a time
when she declared being present in Canada. As to returning to Canada in
October 2009, the Citizenship Judge erred by ignoring a lack of active
indicators of presence in Canada and failed to note that the Respondent’s business
was a corporation and fees paid to it did not establish the Respondent was
physically in Canada. The Respondent provided insufficient objective evidence
to establish she was working at her practice from October 11, 2009. Given
these evidentiary gaps, the Citizenship Judge erred in concluding that he could
conduct the first step in his analysis and his reasons failed to demonstrate
how he resolved the evidentiary gaps. The decision is also unreasonable
because the Citizenship Judge’s reasons are inadequate; they fail to sufficiently
justify the Citizenship Judge’s decision with reference to the evidence.
For example, the Citizenship Judge did not address the lack of stamps in the
Respondent’s passport; her passport being issued to her in Pakistan at a time
when she claimed to be in Canada; her low personal income and failure to file
Notice of Assessment for 2009, mainly automated bank transactions and her
corporate status; her September 2009 return to Canada could not be verified and
was not analyzed in reference to her first OHIP entry for that year, being in
December despite the fact that she gave birth in March 2008; and, there was no
analysis of her declared but undocumented residences.
[26]
Subsequent to this Court granting leave, the Minister
filed further written representations. The Respondent at that time had filed
only her affidavit sworn on July 14, 2017. The Minister objected to Exhibit A
of that affidavit. This is a printout entitled Preventive Care Target
Population/Service Report (“Medical Record”) for the Respondent’s medical
group, Castlemore Family Health Group, listing her as the physician and
indicating services provided (childhood immunization services) including during
dates at issue. The Minister submits the record was not before the Citizenship
Judge and cannot be relied upon to establish his decision was reasonable.
Moreover, the document is an egregious breach of confidentiality as it includes
names, birth dates, health card numbers, and other information concerning
patients who attended the clinic. The Medical Record should also be struck on
this basis, particularly given its lack of probative value as it was not before
the decision-maker.
[27]
The Minister also conceded, contrary to his
prior arguments, that the Respondent’s Pakistani passport appears to have been
issued in Toronto. The Minister therefore no longer argued that the
Citizenship Judge erred by not engaging with that document as evidence placing
the Respondent in Pakistan when she claimed to be in Canada, but submits that
nothing turns on this point.
Respondent’s Position
[28]
The Respondent notes that the Minister abandoned
his argument concerning the place of issue of her Pakistani passport, but
states raising the issue with such vigour at the leave stage was inappropriate.
Similarly, the Minister relied heavily on the File Preparation and Analysis Template
- Long and criticized the Citizenship Judge for allegedly failing to heed its
findings, however, the Minister failed to disclose the prior File Preparation
and Analysis Template - Short which supported the Citizenship Judge’s
conclusions.
[29]
The Respondent further submits that the absence
of stamps in her passport for re-entry on May 10, 2008, September 14, 2008, and
October 11, 2009, does not undermine her credibility; this Court has recognized
that Canada Border Services Agency does not keep complete records of entry into
Canada and that this is beyond applicants’ control (Canada (Citizenship and
Immigration) v Gao, 2015 FC 1363 at para 25; Canada (Citizenship and
Immigration) v Purvis, 2015 FC 368 at paras 37-39). In addition, passport
stamps do not constitute irrefutable proof of a person’s movements across the
Canadian border because not all countries, including Canada, routinely stamp
passports at entry (Ballout v Canada (Citizenship and Immigration), 2014
FC 978 at para 25; Citizenship Policy Manual CP-5, p 18). In any event, the
Citizenship Judge’s reasons demonstrate he scrutinized both the return and
departure dates, including associated passport stamps, and was able to verify
on a balance of probabilities the return dates for three of the five declared
absences.
[30]
And, to address the Minister’s assertions, the Respondent
disclosed the Medical Record, which the Ontario Ministry of Health and Long
Term Care created and issued to the Respondent. This document confirms she was
physically present in Ontario because she serviced patients during the disputed
periods. The Respondent submits the document is the Ministry of Health’s
corporate record made in the usual course of business and is admissible under s
30 of the Canada Evidence Act, RSC, 1985, c C-5 (“Canada Evidence Act”).
Moreover, the probative value of this evidence is so high that it displaces any
real or perceived prejudice to the Minister; it is dispositive of the main
contentious issue and admitting it would restore the “balance
of procedural fairness” which was negatively tipped against the
Respondent by the Minister’s submissions at the leave stage; the fact the
record unequivocally places the Respondent in Canada during the disputed
periods should have been conceded by the Applicant; and, procedural fairness
requires that the record be before the Court given the importance of the
decision to the Respondent and the risk of a potential injustice if it is not.
This would also bring the administration of justice into disrepute as the
Minister will be attempting to persuade this Court that the Respondent was
absent from Canada while knowing this is not true.
[31]
The Respondent submits the Citizenship Judge
found her to be forthright, consistent, and credible and that she provided
sufficient documentary proof to establish her claimed presence in Canada. It
was open to the Citizenship Judge to afford at least as much weight to her
credible testimony as to documentary evidence and such evidence can be accepted
as sufficient in lieu of substantiating documents (Sukkar at para 20). Similarly,
it was open to the Citizenship Judge to rely on the Respondent’s testimony to
fill in gaps in the record, this Court has previously rejected the Minister’s
contrary interpretation of El Falah (Canada (Citizenship and
Immigration) v Gouza, 2015 FC 1322 at paras 14-17 (“Gouza”)).
Additionally, the Citizenship Judge’s credibility findings attract significant
deference (Martinez-Caro at para 46). Nor is the adequacy of reasons an
independent ground for the granting of a judicial review (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 at para 16 (“Newfoundland Nurses”). In essence, the Minister is
simply unhappy with the well-reasoned decision of the Citizenship Judge and
seeks to have this Court re-weigh the evidence, which is not its role (Canada
(Citizenship and Immigration) v Golafshani, 2015 FC 1136 at para 23).
Analysis
Respondent’s Affidavit
[32]
As a starting point, I note that the
jurisprudence is clear that in determining the admissibility of an affidavit in
support of an application for judicial review, as a general rule, the
evidentiary record before a reviewing Court is restricted to the evidentiary
record that was before the decision-maker. Evidence that was not before the
decision-maker and that goes to the merits of the matter is, with certain
limited exceptions, not admissible. While the categories are not closed, the
identified exceptions allow an affidavit that: provides general background in
circumstances where that information might assist the Court in understanding
the issues relevant to the judicial review; brings to the Court’s attention procedural
defects that cannot be found in the evidentiary record of the administrative
decision-maker, allowing the Court to fulfil its role of reviewing for
procedural unfairness; and, highlights the complete absence of evidence before
the administrative decision-maker when it made a particular finding (Association
of Universities and Colleges of Canada v Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22 at para 20 (“Assn of Universities and
Colleges”); Bernard v Canada (Revenue Agency), 2015 FCA 263 at paras
23-25; Delios v Canada (Attorney General), 2015 FCA 117 at para 42 (“Delios”)).
[33]
Paragraph 12 of the Respondent’s affidavit and
Exhibit A, the Medical Record, do not fall within any of these exceptions.
[34]
As to the Respondent’s submission that the Medical
Record is admissible as a business record based on s 30 of the Canada
Evidence Act, which provides a hearsay exception for business records
created in the usual and ordinary course of business, she provides no
jurisprudence in support of this position. In my view, Delios, Assn
of Universities and Colleges, and Canada (Citizenship and Immigration) v
Ishaq, 2015 FCA 151 create an exclusionary evidence rule that
applies to judicial reviews precluding fresh evidence and none of the
recognized exceptions permit introducing records simply because they were
created in the ordinary course of business. The issue here is not the
reliability or probative value of the Medical Record, but rather the fact the
record was not before the decision-maker. Allowing business records to be
admitted because they fall under a hearsay exception would allow parties to
introduce fresh evidence going to the merits of a citizenship judge’s decision
and to invite the Court to re-determine the matter on the merits. This is not
the role of this Court on judicial review.
[35]
And while I agree that disclosing patients’ personal
information by filing an unredacted Medical Record was inappropriate, contrary
to the Minister’s submissions, an alleged breach of patient confidentiality is
not a basis upon which the document should be struck. Rather, in the context
of judicial review, the issue is one of confidentiality and could and should have
been addressed as such.
[36]
In summary, paragraph 12 of the Respondent’s
affidavit and Exhibit A thereof are not admissible. To protect the personal
information of patients contained in Exhibit A, the Registry shall be directed
to remove it from the filed copy of the affidavit and to return the document to
the Respondent.
Reasonableness of the Decision
[37]
As to the Minister’s position that the
Citizenship Judge’s decision was unreasonable, in my view, this cannot succeed.
[38]
Reasons are adequate if they permit a reviewing
court to understand why the tribunal made its decision, and to determine
whether the conclusions fall within the range of acceptable outcomes in light
of the evidence before the tribunal and the nature of the statutory task (Newfoundland
Nurses at paras 16, 18). Moreover, adequacy of reasons is not a
stand-alone basis for quashing a decision because “the
reasons must be read together with the outcome and serve the purpose of showing
whether the result falls within a range of possible outcomes” (Newfoundland
Nurses at para 14).
[39]
The Citizenship Judge assessed the Respondent’s
citizenship application in accordance with s 5(1)(c) of the Citizenship Act
and the quantitative physical presence test in Re Pourghasemi,
which required her to establish, on a balance of probabilities that she was a
resident in Canada for a minimum of 1095 days during the relevant period. The
Citizenship Judge’s reasons are clear and explain why he concluded the
Respondent met this residence requirement on that standard. Moreover, he tied
his reasons to the evidentiary record and, where there were gaps in the
Respondent’s residence record, these were addressed. He explicitly found that
the Respondent had provided sufficient reliable evidence.
[40]
The Citizenship Judge found the Respondent to be
“forthright, consistent, and credible”, which
warrants deference (Martinez-Caro at para 46, Aguebor v Canada
(Minister of Employment and Immigration), [1993] FCJ No 732 (FCA) at para
4). Deference also flows from the Citizenship Judge being in the best position
to assess both the factual record and the Respondent’s credibility (Martinez-Caro
at para 46). Further, credible testimony can be weighed equally with
documentary evidence when assessing the Respondent’s travel and residence
record (Sukkar at para 20). The Citizenship Judge relied on both the Respondent’s
credible testimony and her documentary evidence to find that she was present in
Canada for the times set out. This approach was consistent with the
Respondent’s burden of proof and did not involve the Citizenship Judge
arbitrarily filling in evidentiary gaps.
[41]
Moreover, it was not necessary for the
Respondent to provide documentary corroboration for every verbal statement she
made at the citizenship hearing. The Citizenship Judge reasonably relied on
the Respondent’s credible testimony to explain gaps in the residence record (Gouza
at paras 14-17). Nor does relying on credible testimony amount to ‘blindly
accepting submissions on residency’ as warned against in El Fallah. The
citizenship judge in El Fallah did not find the citizenship candidate forthright,
consistent, and credible and also struggled with a great deal of confusion
regarding the candidate’s residence record (El Fallah at para 16).
[42]
The Minister places great weight on the details
of the File Preparation and Analysis Template - Long. However, it should be
pointed out that this report does not fetter the Citizenship Judge’s discretion,
nor was he bound to address the report on a microscopic level (Gouza at
para 18; Canada (Citizenship and Immigration) v Abdulghafoor, 2015 FC
1020 at paras 31-36). A citizenship judge is presumed to have considered all
of the evidence (Canada (Citizenship and Immigration) v
Suleiman, 2015 FC 891 at para 23 (“Suleiman”)). And, the Citizenship Judge
was required, taking context into consideration, to and did determine the extent
and nature of the evidence requirement (Canada (Citizenship and Immigration)
v El Bousserghini, 2012 FC 88 at para 19; Suleiman at para 27). The Citizenship Judge’s
reasons explicitly addressed the Minister’s credibility concern pertaining to a
possible misrepresentation investigation which was closed and not pursued by
the Minister and, for that reason, found it need not be addressed; the reasons
addressed departure dates and explained that the Citizenship Judge
accepted them as verified based on passport stamps, which he was entitled to do
(Zhao v Canada (Citizenship and Immigration), 2016 FC 207 at para 21, Saad v Canada (Citizenship and
Immigration), 2013 FC 570 at para 26); the reasons addressed
the two re-entry dates that the Citizenship Officer was unable to verify and
where the Citizenship Judge was not satisfied, given an absence of active
indicators, that the May 10, 2008 return date was verified, he adjusted this to
September 14, 2008, at which date the Respondent’s presence in Canada was
verified by the issuance of the Respondent’s medical certificate, a letter from
the administrator of Castlemore Health Centre confirming that the Respondent
commenced her practice there in September 2008, other active indicators, and,
her credible evidence. The October 11, 2009, return date was confirmed by
reimbursements received from the Ministry of Health which the Citizenship Judge
found clearly demonstrated that the Respondent was at her practice from October
to December of that year.
[43]
As to the Citizenships Officer’s comment that the
Respondent’s income appeared to be low for her profession, contrary to the
Minister’s submissions, the Citizenship Judge directly addressed the
Respondent’s income and the incorporation at the hearing. He noted
documentation confirming reimbursement for two months in 2008, all of 2009-2011,
and the first nine months of 2012 and accepted the Respondent’s explanation of
the incorporation of her medical practice for tax purposes, thereby reducing
her personal income. And to the extent that the Minister may now be suggesting
that the Respondent did not personally provide the services for which fees were
claimed, in effect, this suggests the Respondent fraudulent billed for
services. Yet the Citizenship Judge accepted her testimony that she had been paid
on a case-by-case basis and, therefore, had to be seeing patients at her
practice in order to bill the Ontario Ministry of Health. Further, the record
contains OHIP Medical Claims Payment Histories for 2008 - 2012 which name the
Respondent personally and the January 30, 2013, letter from the administrator
of Castlemore Health Centre confirms that the Respondent practiced with that
group as a family practice consultant since September 2008 and that her monthly
income from the Ministry of Health was approximately $16,000. And while the
Minister asserts the OHIP payment history not only named her but also included the
name and address of her clinic and the wording “Provider:
[provider number redacted] – SOLO/GROUP PAYMENT”, the Citizenship Judge
was satisfied that the evidence established the Respondent’s practice in
Canada. Accordingly, I see no merit in the Minister’s position and, in any
event, this was adequately addressed by the Citizenship Judge who accepted that
the Respondent was clearly at her medical practice during the period at issue.
[44]
The Citizenship Judge also turned his mind to
the gaps in the record, received explanations from the Respondent, and accepted
those explanations as credible having had the benefit of a hearing and the documentary
evidence. While his reasons may not have referred to every detail or set out
every reason or argument or made an explicit finding on every element of the
evidence, this does not, in this case, amount to a reviewable error (Suleiman
at paras 17, 23, 38, 41). Nor am I persuaded that his review of the evidence
was lacking or that he was required to delve further. His reasons were
sufficient to permit this Court to understand why he reached the conclusion he
did and that his conclusion falls within the range of possible, acceptable
outcomes. Accordingly, and for the above reasons, I find that the Citizenships
Judge’s decision was reasonable.
Costs
[45]
The Respondent seeks costs, even if only in a symbolic
amount, asserting that had the Minister disclosed the conflicting report of the
first citizenship officer or had the Minister not made the erroneous argument
concerning the place of issuance of her Pakistani passport, described by the
Minister as a critical flaw in her application, this Court would likely not have
granted leave. Further, once the Respondent filed her affidavit attaching the
Medical Record, which established beyond question that she was in Canada during
some of the disputed dates, the Minister should have discontinued the
application. Failure to do so caused the Respondent unnecessary expense and
worry. Moreover, the Minister’s submissions to the Court were vastly
overstated and did not reflect the circumstances of the matter.
[46]
That may be so, but costs are not ordinarily
awarded in immigration proceedings in this Court. Rule 22 of the Federal
Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22
states that “No costs shall be awarded to or payable by
any party in respect of an application for leave, an application for judicial review
or an appeal under these Rules unless the Court, for special reasons, so
orders”. Upon review of the jurisprudence, I am not persuaded that the
high threshold for establishing the existence of special circumstances has been
met in these circumstances (Suleiman at para 47-48; Deheza v Canada (Immigration, Refugees, and Citizenship), 2016 FC 1262 at para 39).
Email this Content