Gavriluta v. Canada (Minister of Citizenship and
Immigration)
Between
Dragos Ovidiu Gavriluta, Applicant, and
The Minister of Citizenship and Immigration, Respondent
And between
Claudia Gavriluta, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
And between
Claudia Gavriluta, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 770
2013 FC 705
Dockets T-946-12, T-947-12
Federal Court
Toronto, Ontario
Heneghan J.
Heard: November 29, 2012.
Further submissions, received post hearing: December 13, 18
and 21, 2012.
Judgment: June 25, 2013.
Dockets T-946-12, T-947-12
Federal Court
Toronto, Ontario
Heneghan J.
Heard: November 29, 2012.
Further submissions, received post hearing: December 13, 18
and 21, 2012.
Judgment: June 25, 2013.
(40 paras.)
Counsel:
REASONS FOR JUDGMENT
HENEGHAN J.:--
I. Introduction
1 Mr.
Dragos Ovidiu Gavriluta and his wife Mrs. Claudia Gavriluta (collectively
"the Applicants") appeal from a decision of Citizenship Judge Aris
Babikian (the "Citizenship Judge") denying their applications for
citizenship. The appeal is brought pursuant to subsection 14(5) of the Citizenship Act, R.S.C., 1985, c. C-29 (the
"Act"). The applications for citizenship were denied on the basis
that the Citizenship Judge was not satisfied that the Applicants had presented
credible evidence to show that they had satisfied the residency requirements of
the Act.
2 Pursuant
to section 21 of the Federal Courts Act, R.S.C., 1985, c. F-7, appeals under the Act proceed as applications
governed by Part 5 of the Federal Courts Rules, SOR/98-106. The Applicants commenced individual applications but in
view of the overlap of the facts and arguments in these two appeals, I will
review the background facts of both applications together.
II. Background
3 The
Applicants are citizens of Romania.
4 The
male Applicant claims that he began employment with Clariant Corporation in
Minneapolis, Minnesota in August 2001. He says that he first entered Canada in
November 2004, upon a work permit, for a business trip. He also claims
that he was promoted to General Manager at Clariant (Canada) Inc. in January
2005. On August 14, 2005, he became a "permanent resident" of Canada
within the meaning of that term in the Immigration and
Refugee Protection Act, S.C. 2001, c. 27. His wife
entered Canada in February 2005 and became a permanent resident on August 17,
2005.
5 On
December 29, 2008, a "non-computer based entry" was made in the Field
Operation Support System ("FOSS") as follows:
·
Received call from Officer
Smith, Customs & Border Control at Windsor Ambassador Bridge stating that
she is currently interviewing the subject who is re-entering the USA after
being in Canada for work for the last 2 weeks. Subject is employed by Clariant
USA. Subject stated to Officer Smith that he has only lived in the USA
(Minnesota) since 2004 and has never lived in Canada. Subject is a permanent
resident in the USA A#097-963-928.
6 On
March 8, 2009, the Applicants submitted applications for Canadian citizenship.
They were required to meet the statutory residence requirements as set out in
subsection 5(1) of the Act as follows:
(1) The Minister shall
grant citizenship to any person who
makes application for
citizenship;
is eighteen years of age
or over;
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:
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
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;
has an adequate knowledge
of one of the official languages of Canada;
has an adequate
knowledge of Canada and of the responsibilities and privileges of citizenship;
and
is not under a removal
order and is not the subject of a declaration by the Governor in Council made
pursuant to section 20.
* * *
(1) Le ministre attribue
la citoyenneté à toute personne qui, à la fois :
en fait la
demande;
est âgée d'au moins
dix-huit ans;
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 :
un demi-jour pour
chaque jour de résidence au Canada avant son admission à titre de résident
permanent,
un jour pour chaque
jour de résidence au Canada après son admission à titre de résident
permanent;
a une connaissance
suffisante de l'une des langues officielles du Canada;
a une connaissance
suffisante du Canada et des responsabilités et avantages conférés par la
citoyenneté;
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.
7 In
his application for citizenship the male Applicant said that he had been
present in Canada for 1,214 days during the relevant period, that is the four
years immediately preceding the date of his application for citizenship. He
said he had been absent for 166.5 days.
8 The
female Applicant declared physical presence in Canada of 1,298 days and an
absence of 73 days.
9 Each
Applicant, in their citizenship applications, also declared that they did not
have permanent resident status in any other country.
10 On
August 10, 2010, the Applicants completed a citizenship test. They were
interviewed at that time by a citizenship officer. They were issued residence
questionnaires which they returned approximately two weeks later, together with
copies of other documents.
11 The
Applicants' file was reviewed by another citizenship officer in or around
November 2011. This Officer, in examining copies of the Applicants' passports,
noticed that many stamps in the passports were imprinted "ARC",
sometimes with a number. This Officer formed the opinion that "ARC"
meant "Alien Registration Card". The Officer was also aware of the December
2008 FOSS notes referred to above.
12 As
a result, on November 5, 2011, the Officer telephoned the male Applicant to
discuss his residence status in the United States. According to the Global Case
Management System notes, the Officer initially advised the male Applicant only
about the 2008 FOSS notes. According to the Officer, the male Applicant replied
that he was not a resident of the United States and that there had been a
misunderstanding, but that it had been clarified.
13 When
asked by the Officer if he knew the meaning of the "ARC" stamps in
his passport, the male Applicant replied in the negative. When the Officer said
that she believed "ARC" to stand for "Alien Registration
Card", the male Applicant admitted that he held a U.S. Green Card. The
Officer then informed the male Applicant that he needed to obtain a letter from
the American authorities stating that he is not a U.S. resident. The Officer
provided her contact information. However, the male Applicant did not subsequently
contact the Officer or provide the requested information.
14 The
Officer decided that a hearing would be necessary in order to verify the period
of the Applicants' residency in Canada. On December 28, 2011, the Applicants
appeared before the Citizenship Judge for their residence hearing.
15 Following
the hearing, the Applicants were afforded further time to provide additional
information. They submitted further documents throughout February 2012. The
Citizenship Judge delivered his decision on April 10, 2012.
16 In
his decision, the Citizenship Judge reviewed the conflicting evidence as to the
male Applicant's resident status in the United States. Page 2 of the decision
provides, in part, as follows:
·
On page 2 of the Canadian
Citizenship Application (CIT 0002), and in response to Question 7(d) of that
form which asks "Do you have permanent resident status in any other
country," the Applicant ticked the "No" box.
·
Yet, in Port of Entry (FOSS)
notes, NCB #Z011511300, created on Dec. 29, 2008, a Canadian officer received
the following information from a US counterpart and noted:
·
"Received call from Officer
Smith, Customs & Border Control at Windsor Ambassador Bridge stating that
she is currently interviewing the subject [Mr. Gavriluta] who is reentering the
USA after being in Canada for work for the last 2 weeks. Subject is employed by
Clariant USA. Subject stated to Officer Smith that he has only lived in the USA
(Minnesota) since 2004 and has never lived in Canada. Subject is a permanent
resident in the USA A#097-963-928."
·
The Applicant's Romanian
passport has many USA entry stamps with a hand-written imprint of
"ARC." The imprint "ARC" means Alien Registration
Card." Also, under some of these stamps the serial number A #097-963-928 is
written. The serial number is identical to the number referred to in the FOSS
notes mentioned above. [Emphasis in original]
17 The
Citizenship Judge then commented upon the examination of the male Applicant at
the hearing of December 28, 2011, as follows:
·
At the Dec. 28, 2011 hearing, I
raised the Green Card issue with the Applicant and his response to Question
7(d) on Page 2 of the Canadian Citizenship Application (CIT 0002). He
stated:
·
"The way I interpreted is
that when it says 'resident' it means that where I reside. I have also Romanian
passport but I do not reside there. It was misunderstanding.
·
When I read him Question 7(d) on
page 2 of the Citizenship Application and stated that the question is very
clear about the issue of having permanent residency status in any other
country, he replied:
·
"That's how I understood
it; it is misunderstanding."
·
I asked him about the US Custom
and Border Patrol Officer's comments in the FOSS note. To this query he said,
"It was misunderstanding." I asked him if he still has his Green Card
and if the US authorities are aware that he has permanent residency status in
Canada. He replied "Yes" to both questions. I asked him to provide me
a letter from the US authorities stating that they are aware that he is a
permanent resident holder in the US and Canada simultaneously and then
requested an outline of the policy on retaining the Green Card. He stated
"I will go and ask them."
·
After interviewing Mr. and Ms.
Gavriluta separately, I called them back together to my office to give them the
new Residency Checklist to submit the missing supporting documents which they
failed to submit with the Aug. 10, 2010 [residency questionnaire] request. I
also asked them to provide to me their US Green Card applications and a letter
from US authorities stating that they are aware that the Applicants are
permanent residents of Canada and stating the US policy vis-à-vis Green Card
Holders who reside in Canada.
·
To this request, Ms. Gavriluta
turned to her husband and said to him: "You will lose your Green
Card." Mr. Gavriluta then said to me, "We will consult our
lawyer." This response indicates that Ms. Gavriluta had an awareness that
holding permanent residence status in two countries might raise red flags for
immigration and citizenship officials in both countries.
·
At the hearing the Applicant
stated that he "files income tax in the US but he doesn't pay." This
raises the question as to why would someone who is living, working, and filing
income tax in Canada has to file US income tax unless they have residence
status in the US.
·
The above observation leads me
to conclude that Mr. Gavriluta has US residence status and this puts into
question his physical presence in Canada, and the number of days he claims that
he resided in Canada during the relevant period.
18 The
Citizenship Judge also noted that two re-entries to Canada could be seen in the
male Applicant's Integrated Customs Enforcement System ("ICES")
Travel History and three in the female Applicant's travel history, none of
which were declared by the Applicants in either their citizenship applications
or their residency questionnaires. In the case of the male Applicant the
undeclared re-entry dates were March 21, 2006, and November 25, 2007. In the
case of his wife, the undeclared re-entry dates were March 4, June 17, and
November 25, 2007.
19 By
a letter dated February 10, 2012, the Applicants' lawyer acknowledged these
dates after receiving a copy of the ICES Travel History and advised that
"Mr. and Ms. Gavriluta advised that these are 1-day return trips to the US
as they are not stamped on their passport." However, without documentary
evidence to confirm that statement, the Citizenship Judge found that the
departure dates, and the true length of the trips, could not be established.
20 After
noting other minor inconsistencies in the travel dates given by the Applicants,
the Citizenship Judge then reviewed the Applicants' Ontario Health Insurance
Plan ("OHIP") usage history by examining their OHIP claims. He noted
a break of approximately two years, that is from February 2006 to January 2008,
in the male Applicant's usage history. There was a thirteen month gap, that is
from September 2006 to October 2007, in the female Applicant's usage history. The
Citizenship Judge expressed the view that these breaks were inconsistent with
the Applicants' otherwise "extensive utilization of the medical system in
Ontario."
21 The
Citizenship Judge then considered that the Applicants had not obtained the
information and documents that they had been requested to obtain from the
American authorities. The Citizenship Judge did not accept their lawyer's
statement that the requested information and materials "were not
available".
22 The
Citizenship Judge then proceeded to review other documents that had been
provided by the Applicants, including Canada Revenue Agency Assessments,
mortgage statements, municipal tax bills, and joint bank account statements.
The Citizenship Judge characterized these documents as "passive
indicia" of residency. Overall, the Citizenship Judge was not satisfied
that the Applicants had submitted credible evidence or that they had discharged
their burden of proving, on a balance of probabilities, that they had met the
residency requirements of the Act as set out in subsection 5(1) of the Act.
III. Issues
23 The
within proceeding raises the following issues:
What is the applicable
standard of review;
Did the Citizenship
Judge err in selecting the wrong test for residency under paragraph 5(1)(c) of
the Act;
Did the Citizenship
Judge err in his assessment of credibility; and
Did the Citizenship
Judge err in calculating the time for the purposes of establishing
residency?
IV. Discussion and Disposition
24 The
first issue to be addressed is the applicable standard of review. According to
the decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, there are only two standards of review in the
domain of administrative law, that is correctness for issues of law and
procedural fairness, and reasonableness for questions of fact and mixed fact
and law.
25 The
Applicants argue that the Citizenship Judge's selection of the applicable test
for residency is correctness, referring to several decisions including El Ocla v. Canada (Minister of Citizenship and Immigration) (2011), 389 F.T.R. 241 at para. 14, and Dedaj
v. Canada (Minister of Citizenship and Immigration)
(2010), 372 F.T.R. 61.
26 The
Respondent submits that it remains within the discretion of the Citizenship
Judge to decide which test to apply and that as long as one of these tests is
correctly applied there will be no error on that basis alone; see the decisions
in El-Khader v. Canada (Minister of Citizenship and
Immigration) (2011), 386 F.T.R. 142 at para. 10 and Balta v. Canada (Minister of Citizenship and Immigration) (2011), 403 F.T.R. 134 at para. 10.
27 In
my opinion, since the jurisprudence allows for a choice among the tests for the
purpose of establishing residency, the choice of test is a question of
discretion for the Citizenship Judge; see the decision in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177. Discretionary decisions are subject to
deference; see Dunsmuir, supra, at para. 53. It follows that both the
choice of the residency test and its application are reviewable on the standard
of reasonableness.
28 The
Citizenship Judge chose to apply the residency test set out in Pourghasemi, Re (1993), 62 F.T.R. 122. This
test relies upon a strict count of days, as opposed to the "centralized
mode of living" test as per Re Papadogiorgakis, [1978] 2 F.C. 208 at page 214, or the test of "substantial
connection" as set out in Koo, Re (1992), 59 F.T.R. 27 at para. 10.
29 The
Citizenship Judge was allowed to choose one of the three tests. The next
question is whether he reasonably applied the test chosen, that is, did the
Citizenship Judge reasonably conclude that the Applicants had failed to
establish their physical presence in Canada for 1,095 days, in order to satisfy
the requirements of the Act?
30 In
addressing this issue, I must necessarily look at the manner in which the
Citizenship Judge assessed the credibility of the Applicants, as well as his
assessment of the reliability of the various documents that were submitted.
31 In
my opinion, the Citizenship Judge's concerns about the Applicants' credibility
were well-founded. The most obvious matter is the FOSS note entry, reproduced
above, which shows that the male Applicant was not forthright about the history
of his residence in both Canada and the United States. The male Applicant did
not give a clear answer as to why he told the Canadian immigration officer that
he had never lived in Canada and had been living in the United States since
2004. According to the reasons of the Citizenship Judge, the male Applicant
dismissed this statement as a "misunderstanding". The Citizenship
Judge reasonably found that there were serious grounds to disbelieve the male
Applicant.
32 There
is a further related serious concern about the Applicants' truthfulness and
credibility, arising from the Applicants' answer to question 7(d) on the
citizenship application, that is the question "Do you have permanent
resident status in any other country?" The Applicants gave a negative
answer. Both Applicants were examined on this issue, separately, according to
the reasons of the Citizenship Judge. He concluded that the Applicants had
misrepresented the facts in giving negative answers to this question. He did
not accept their explanation that the negative answers were a result of a
misunderstanding.
33 The
Citizenship Judge made a reasonable finding that the Applicants had
misrepresented their status in the United States.
34 The
Applicants' arguments about the "materiality" of their
misrepresentation cannot succeed. They submit that the "damage"
arising from the missing re-entry data can be limited to a certain range of
dates, based on the "undisputed" re-entry dates entered in the
record. However, even if those particular re-entry dates can be limited by the
previously recorded re-entry dates in the ICES travel history, there is no
means of verifying the accuracy of the departure dates.
35 In
these circumstances, the entire travel history of the Applicants is in doubt.
No independent confirmation of their claim has been provided. I am satisfied
that the Citizenship Judge considered the materiality of the Applicants'
misrepresentation and reasonably found that misrepresentation to be relevant to
all their claims. The Citizenship Judge acted reasonably in rejecting the
Applicants' claim to Canadian citizenship on the basis of the evidence before
him.
36 Although
the Citizenship Judge erred in setting out the relevant time period for
determining residency, a point addressed by Counsel in post-hearing
submissions, this error does not affect the ultimate decision and disposition of
these appeals.
37 The
Citizenship Judge found that the relevant period for assessing the residency
required for the male Applicant was August 14, 2005, to March 8, 2009. This was
wrong; the relevant period was March 8, 2005, to March 8, 2009. In my opinion,
the error is immaterial since it is clear from the decision that the
Citizenship Judge was applying the physical presence test and given the
problems with the evidence submitted by the Applicants, he could not determine
if the Applicants had met the threshold of 1,095 days of residency.
38 In
conclusion, the Applicants have failed to show that the Citizenship Judge
committed any reviewable error or that the decision fails to meet the standard
of reasonableness. The decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and the law.
39 These
reasons will be filed in cause number T-946-12 and placed on the file in cause
number T-947-12.
40 The
appeals will be dismissed. Since the Respondent did not seek costs, none will
be awarded.
HENEGHAN J.
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