Sami v. Canada (Minister of Citizenship and
Immigration)
Between
Al-Askari, Sami, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Al-Askari, Sami, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 619
2015 FC 623
Docket: T-1785-14
Federal Court
Montréal, Quebec
Shore J.
Heard: May 11, 2015.
Judgment: May 12, 2015.
Docket: T-1785-14
Federal Court
Montréal, Quebec
Shore J.
Heard: May 11, 2015.
Judgment: May 12, 2015.
(27 paras.)
JUDGMENT AND REASONS
· SHORE J.:--
I. Introduction
1 This
is an application for judicial review of a decision rendered by a Citizenship
Judge refusing the Applicant's application for citizenship on the basis that
the Applicant failed to meet the requirements of paragraph 15(1)(c) of the Citizenship
Act, RSC 1985, c C-29 [Act].
II. Factual Background
2 The
Applicant was born in 1989 in Abu Dhabi, United Arab Emirates [UAE] and became
a permanent resident of Canada on July 8, 2004.
3 The
Applicant filed an application for citizenship on June 8, 2011. Therefore, the
relevant time period for the purposes of determining residency in accordance
with paragraph 5(1)(c) of the
Act is from June 8, 2007 to June 8, 2011.
4 The
Applicant attended an interview with a citizenship officer in March 2013 and,
upon referral, appeared before the Citizenship Judge on November 20, 2013.
5 On
December 12, 2013, the Applicant submitted additional documentation relating to
his travel activities.
III. Impugned Decision
6 In
a letter dated June 26, 2014, the Citizenship Judge communicated her decision
(dated January 20, 2014) to the Applicant, wherein she refuses the Applicant's
application for citizenship on the basis that the Applicant failed to meet the
residency requirements for the applicable four-year period. In particular, the
Citizenship Judge concluded:
· [...] I am not satisfied that the information submitted allows me to
conclude that Mr. AL-ASKARI was physically and distinctly present in Canada for
at least 1 095 days during the relevant time period under examination as
prescribed by law to meet the requirements of subsection 5(1)c) of the Citizenship [Act].
· (Decision and reasons, Certified Tribunal Record, at p 13).
7 In
the reasons, the Citizenship Judge acknowledges receipt of additional documents
in December 2013 and January 2014 submitted by the Applicant, which included
officially sealed school transcripts and income tax declarations.
8 First,
the Citizenship Judge noted discrepancies in respect of the Applicant's
declared absences from Canada, as found in his Original Application and
Residency Questionnaire. According to the Citizenship Judge, although these
variations in respect of length of absences leave the Applicant within the requisite
1,095 days prescribed under the Act, they nonetheless impugn the Applicant's
credibility.
9 The
Citizenship Officer then proceeded to analyze the official travel documents
provided by the Applicant in support of his application for citizenship: the
translated UAE Residency and Nationality System Report and the Applicant's
three Syrian passports, two of which cover the entire period under examination.
10 The
Citizenship Judge raised numerous concerns pertaining to the passports used by
the Applicant in his travels, as evidenced in the Applicant's Residency and
Nationality System Report for the UAE. In sum, the Citizenship Judge found that
the evidence raised "doubts as to the completeness [of] the Applicant's
declarations regarding his absences from Canada" and that she could
therefore not "rely on these declarations with any great degree of
confidence" (Decision and Reasons, Certified Tribunal Record, at p 16).
11 The
Citizenship Judge then assessed additional documentary evidence adduced by the
Applicant, such as evidence pertaining to education in Canada, banking and
financial transactions, tenancy, social ties and other indicators of residence,
in order to validate the Applicant's "physical" and
"distinct" presence in Canada for the relevant timeframe.
12 In
particular, the Citizenship Judge noted that segments of the four-year relevant
timeframe were not accounted for and that portions of the evidence amounted to
"passive indicators" of residency.
13 The
Citizenship Judge ultimately found that the evidence was "incomplete,
inconsistent and unclear" and did not form sufficient and
"satisfactory indicia of residence" (Decision and Reasons, Certified
Tribunal Record, at p 19).
14 These
findings led the Citizenship Judge to conclude:
· The sum effect of all the above is that I am unable to determine
with any degree of confidence or accuracy the actual number of days the
Applicant was within Canada and the actual number of days that the Applicant
was absent from Canada. I find that, on a balance of probabilities, the
evidence before me does not reasonably show nor suffice to establish residence
in the Applicant's case.
· (Decision and Reasons, Certified Tribunal Record, at p 19)
IV. Legislative Provisions
15 Section
5 of the Act outlines the requirements applicants must fulfill in order to
receive Canadian citizenship. Notably, paragraph 5(1)(c) provides that permanent residents must demonstrate that they have
accumulated three years of residence in Canada within the four years preceding
the date of their application:
· Grant of citizenship
(1) The Minister shall
grant citizenship to any person who
· (a) makes application
for citizenship;
· (b) is eighteen years
of age or over;
· (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:
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;
· (d) has an adequate
knowledge of one of the official languages of Canada;
· (e) has an adequate
knowledge of Canada and of the responsibilities and privileges of citizenship;
and
· (f) is not under a
removal order and is not the subject of a declaration by the Governor in
Council made pursuant to section 20.
* * *
· Attribution de la citoyenneté
· 5. (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;
· 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:
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;
· d) a une connaissance suffisante de l'une des
langues officielles du Canada;
· e) a une connaissance suffisante du Canada et
des responsabilités et avantages conférés par la citoyenneté;
· f) 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.
V. Issue
16 This
application raises the following issue:
· Did the Citizenship Judge err in finding that the Applicant failed
to meet the requirements of physical presence in Canada pursuant to paragraph
5(1)(c) of the Act?
VI. Standard of Review
17 A
Citizenship Judge's decision in respect of whether an applicant has met the
residency requirements for the purposes of establishing citizenship is
reviewable on the standard of reasonableness (Chaudhry v
Canada (Minister of Citizenship and Immigration), 2011
FC 179 at para 20 [Chaudhry]; Atwani v Canada (Minister of Citizenship and Immigration), 2011 FC 1354 at para 10 [Atwani]).
18 The
highly discretionary nature of the Citizenship Judge's findings attracts
considerable deference from this Court:
· [14] It is now settled law that the standard of review applicable to
the decisions of Citizenship Judges is that of reasonableness: see, for
example, Zhang v. Canada (Citizenship and Immigration), 2008 FC 483; Chen v. Canada (Citizenship
and Immigration), 2007 FC 1140. Whether dealing with
questions of mixed fact and law, as when applying one of the jurisprudential
tests of the concept of residency to the particular facts of the case, or
purely factual questions, as when computing days of absence, Dunsmuir v. New Brunswick (2008 SCC 9)
instructs us that the reviewing court should show deference and resist
substituting its own view for that of the Citizenship Judge. To the extent that
the impugned decision is intelligible and justified and can be considered a
defensible outcome in respect of the facts and the law, it should not be set
aside on judicial review: Paez v. Canada (Citizenship
and Immigration), 2008 FC 204.
· (El Falah v Canada (Minister of Citizenship
and Immigration), [2009] F.C.J. 1402 at para 14)
19 As
such, it is not within this Court's mandate to substitute its view for the
Citizenship Judge's findings of fact and of mixed fact and law (Canada (Minister of Citizenship and Immigration) v Vijayan, 2015 FC 289 at para 64; Qureshi v Canada
(Minister of Citizenship and Immigration), 2009 FC 1081
at para 38).
VII. Analysis
20 The
Applicant bears the onus of providing sufficient evidence demonstrating that he
meets the residency requirements set out in paragraph 5(1)(c) of the Act (Mizani
v Canada (Minister of Citizenship and Immigration),
2007 FC 698 at para 19; Chaudhry,
above at para 25). Justice Judith A. Snider's reasoning in Atwani, above, is instructive:
· [12] The Applicant submits that the Citizenship Judge erred by
failing to make a specific determination of how many days the Applicant was actually
physically present in Canada. In the absence of such a determination, the
Applicant argues, the Judge cannot reasonably have concluded that the residency
requirement of s. 5(1)(c) was not met. This argument,
in my view, is fatally flawed. The burden is on the Applicant - not on the
Citizenship Judge - to establish, with clear and compelling evidence, the
number of days of residence. In this case, the Applicant failed to provide
consistent and credible evidence with respect to his absences from Canada.
· [13] As recently stated by Justice Rennie in Abbas
v Canada (Minister of Citizenship and Immigration),
2011 FC 145 at para 8, [2011] F.C.J. No 167:
· Irrespective of which test is applied, each
applicant for citizenship bears the onus of establishing sufficient credible
evidence on which an assessment of residency can be based, whether it is quantitative (Re Pourghasemi) or qualitative (Koo).
· [Emphasis added.]
21 In
the matter at hand, the Applicant was required to demonstrate at least 1,095
days of physical presence in Canada within the four-year period between June
2007 and June 2011.
22 The
Citizenship Judge ultimately found that the Applicant's evidence lacked
clarity, credibility, and was overall ambiguous, which led her to conclude that
the Applicant failed to meet his burden of establishing his physical presence
in Canada for the relevant time period.
23 The
Applicant claims that the Citizenship Officer made mathematical calculation
errors in respect of the Applicant's number of days of absence from Canada,
therefore unreasonably impugning his credibility. The Applicant argues that the
Citizenship Judge erred in finding that the Applicant's passport data, or even
proof of his continued enrolment in educational institutions in Canada, as
evidenced by academic transcripts and attestations, are inconclusive, in and of
themselves, to determine his physical presence in Canada for the minimum
requisite 1,095 days. Moreover, the Applicant submits that in applying the
strict physical presence test, the Citizenship Judge's findings in respect of
other indicators of residence such as banking, housing and other social
activities are superfluous.
24 The
Court finds that the Applicant's submissions amount to a disagreement with the
Citizenship Judge's weighing of the evidence and fail to demonstrate a
reviewable error.
25 It
is this Court's view that the Citizenship Judge conducted a thorough assessment
of the evidentiary record before her and identified numerous shortcomings in
respect of the evidence of the Applicant's physical presence in Canada during
the material four-year period.
26 Upon
review of the Citizenship Judge's decision and reasons, parties' submissions
and the Certified Tribunal Record, the Court finds no basis upon which it may
intervene.
VIII. Conclusion
27 In
light of the above, the Court's intervention is unwarranted.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. There is no
serious question of general importance to be certified.
SHORE J
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