CITIZENSHIP APPLICANTS CANNOT QUESTION USE OF ICES REPORTS

ICES reports are CBSA documents registering entries to Canada and relied upon by Citizenship and Immigration to determine time in Canada. Applicants cannot question a document that they normally can have access to fairly easily.

Cheburashkina v. Canada (Minister
of Citizenship and Immigration)

Between
Liudmila Cheburashkina, Applicant, and
The Minister of Citizenship and Immigration, Respondent
And between
Vladislav Cheburashkin, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 979

2014 FC 847

Dockets: T-89-14, T-91-14

 Federal Court
Toronto, Ontario

Diner J.

Heard: August 18, 2014.
Judgment: September 10, 2014.

(51 paras.)

---

JUDGMENT AND REASONS

·       DINER J.:-- 

I. Overview

1     This is an application under s.14(5) of the Citizenship Act, RSC 1985, c C-29 [Act] and s. 21 of the Federal Courts Act for judicial review of the November 27, 2013 decisions of Citizenship Judge Babcock [Judge], which found that the Applicants did not accumulate the requisite days of residence required for a grant of citizenship in accordance with s. 5(1)(c) of the Act.

2     While the two matters were filed separately, given the almost identical facts, common dates of citizenship filings and of the Judge's refusals, the two matters were heard together at the request and on consent of the parties. The parties also agreed to one set of combined reasons being issued to address both proceedings. Therefore, these reasons are consolidated into one decision and a copy will be placed in each file.

II. Facts and Decision

3     The Applicants entered Canada and became permanent residents on December 28, 2006.

4     Vladislav Cheburashkin applied for Canadian citizenship on August 20, 2010 (1330 days after his arrival in Canada). His wife, Liudmila Cheburashkina, applied for citizenship on April 05, 2010 (1195 days after her arrival).

5     Both Applicants made it clear that they were slightly shy of meeting the 1095 day residency requirement within their citizenship applications, and subsequent residence questionnaires, but in both cases, (i) having over 1000 days of physical residency in Canada, and (ii) evidencing strong attachment to Canada, including Canadian jobs, tax filings, real estate acquisitions, and two Canadian-born children.

6     At their respective hearings in October and November of 2013, the Applicants signed, at the request of the Judge, consents authorizing disclosure of the history of their entries into Canada, known as an Integrated Customs Enforcement System [ICES] report, which is an entry log from the Canada Border Services Agency [CBSA].

7     The applications were both rejected on November 27, 2013 [Decisions], after the Judge applied a strict residency test requiring 1095 days in Canada of the 1460 possible (i.e. 3 full years in Canada out of a window of 4 years).

8     In his Decisions, the Judge found that entrances listed on the ICES reports did not match the absences listed on the residence questionnaires submitted by the Applicants.

9     As is often the case with citizenship cases where one has to look back at travel which can predate the application forms, and ultimately the citizenship interview, by several years, the precise number of days absent from Canada was not entirely clear, given the various residency numbers cited by (a) the Applicants in their original applications, (b) subsequently in their residence questionnaires, (c) Citizenship and Immigration Canada [CIC] in its calculation, and (d) the Judge in his Decisions and background notes.

10     Specifically, with respect to Mr. Cheburashkin, the Judge found that "absences re [sic] calculated would be 700+ days". Neither the Decisions nor the handwritten notes provide specificity regarding the calculation, which was over 400 days more than Mr. Cheburashkin's statement of absences (296 days).

11     With respect to Mrs. Cheburashkina, the Judge also arrived at a differential of over 400 days as between his calculation of her absences (629 days) and Ms. Cheburashkina's submission of 177 days.

12     The Judge further stated that CBSA's ICES report listed five entrances to Canada during the relevant period, and found that these entrances did not match Mrs. Cheburashkina's account of her entrances. In fact, as pointed out by counsel, only one of the five absences listed by CBSA does not match what Mrs. Cheburashkina had provided. Indeed, she listed more entrances to Canada in her residency lists than CBSA did in its ICES report.

13     At neither hearing, based on the Applicants' affidavits and on other evidence presented to the Court, were the Applicants provided with an opportunity to explain or address these significant discrepancies.

14     In applying the "physical presence" test described in Re Pourghasemi, [1993] F.C.J. No. 232, the Judge determined none of the residency periods would satisfy the 1095 day residence requirement of the Act. The Judge refused both applications, and those denials form the basis of these applications to appeal the two Decisions.

15     The Judge also declined, in both Decisions, to make a favourable recommendation for a discretionary grant of citizenship pursuant to s 5(4) of the Act.

III. Issues and Submissions

16     The issues raised are twofold, namely:

·       A. 

Did the Judge breach the principles of procedural fairness, by relying on extrinsic evidence, failing to disclose the ICES report and/or raise the residency concerns with the Applicants?

17     The Applicants submit that the Judge's failure to disclose the ICES reports was a breach of procedural fairness and natural justice, because it precluded them from addressing the Judge's concern that the Applicants may have been out of the country for a period of over 700 and 629 days, respectively.

18     In so doing, the Applicants submit that the Judge both failed to explain the discrepancy between the days out of the country provided by the Applicants' residency questionnaires and the conclusions he garnered from the ICES reports, and more importantly, to provide an opportunity for the Applicants to address the significant differentials between those two sources.

19     The Applicants further point out that if a decision-maker is to rely on extrinsic evidence, which they allege the ICES reports were, then the details of the reports and the concerns elicited from the said reports should have been raised directly with them.

20     By citing the diverging physical residency periods in Canada, the Applicants argue that the Judge implicitly made negative credibility findings against them.

21     The Applicants further assert that the failure to advise them which test was being applied to the adjudication of the matter, was a breach of procedural fairness.

22     In response, the Respondent argues that there was no breach of procedural fairness or natural justice in any respect, because the Applicants had every reason to know that residency would be at issue in a citizenship application due to the residency part of the original application, and subsequent residence questionnaires. Furthermore, the ICES reports could have been accessed by them independently.

23     The Respondent denies that there were any negative credibility findings in the Decisions. Rather, the Judge was confronted with competing periods of residency and none of these periods met the required threshold of the Act.

24     The Respondent further denies any procedural fairness breach occurred through the Judge's failure to advise in advance that he would apply the Pourghasemi residency test.

·       B. 

Did the Citizenship Judge err in applying the Pourghasemi test for citizenship instead of the Koo test?

25     The Applicants plead that the failure to apply the Koo test was unreasonable, given the circumstances, namely, that had the Judge received clarification on the extent of the absences, and found that the applicants indeed were in Canada for the periods they asserted, then he might have picked the Koo test and come to the conclusion that they had centralized their mode of living in Canada, through the qualitative Koo analysis.

26     The Respondent counters that the Decisions were entirely reasonable because the Applicants would not meet the statutory criteria under any of the residency periods provided to the Judge by the Applicants, or the ICES reports, i.e. none of the various periods met statutory requirement of 1095 days. The Respondent further submits that it was completely open and reasonable for the Judge to apply whichever citizenship test he chose.

IV. Standard of Review

27     Where procedural fairness is concerned, a standard of correctness must be applied: See Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Minister of Citizenship and Immigration) v. Takla, 2009 FC 1120.

28     The citizenship test applied and the Judge's assessment under that test, are to be reviewed on a reasonableness standard: Gavriluta v. Canada (Citizenship and Immigration), 2013 FC 705 at para 27.

V. Analysis

·       A. 

Did the Judge breach the principles of procedural fairness, by relying on extrinsic evidence, failing to disclose the ICES report and/or raise the residency concerns with the Applicants?

29     It has been held by this Court on numerous occasions that when an immigration official relies on extrinsic evidence without giving the applicant a chance to respond, a breach of procedural fairness occurs. Extrinsic evidence is evidence that the applicant is unaware of because it comes from an outside source: See Dasent v Canada (Minister of Citizenship and Immigration), [1995] 1 FC 720 [Dasent] at para 23; Feng v Canada (Citizenship and Immigration, 2014 FC 386 [Feng] at para 15.

30     Dasent and Feng also stand for the proposition that one must consider whether the applicant had the opportunity to deal with the evidence, if procedural fairness is to be observed.

31     In the present cases, the Judge relied on ICES reports which the Applicants consented to and could have accessed on their own initiative. It is not the Court's view that ICES reports, which are a common feature of citizenship analyses, and which applicants may apply for on their own accord, constitute extrinsic evidence.

32     The more significant question with regard to procedural fairness raised by the Applicants is whether by relying on the ICES reports and thereafter failing to give the Applicants the right to comment on the negative residency assessment arising from these reports, or provide a fair opportunity of correcting or contradicting that assessment before making his decision, the Judge breached the principles of procedural fairness per Muliadi v Canada (Minister of Employment and Immigration), [1986] 2 FC 205 (FCA), and its progeny.

33     The Applicants take particular issue with the fact that the Judge concluded that a fundamental differential existed between their evidence regarding days resident in Canada, and their residency calculations (a delta of well over 400 days for each of the two cases).

34     Nothing was brought to the attention of the Applicants about the discrepancy based on their uncontradicted affidavit evidence. Mr. Cheburashkin, for instance, states in the relevant paragraphs of his affidavit:

·       6. 

On November 4, 2013, I appeared for an interview with a citizenship judge. The judge asked me questions about my residence in Canada. At the interview, the citizenship judge asked me to sign a document regarding my history of entries to Canada thus giving permission to the Canada Border Services Agency to disclose the details of my entries. I did not hear anything further from the citizenship judge. 

·       8. 

...I have read the reasons for refusal provided by the citizenship judge. The citizenship judge states that the report of entrances into Canada received from the Canada Border Services Agency lists entrances that do not match what I stated in my application and the residence questionnaire. The citizenship judge did not disclose the report from the Canada Border Services Agency to me and never gave me an opportunity to address his concerns. 

35     Ms. Cheburashkina provides similar evidence in her Affidavit regarding the lack of any opportunity to address the residency issue.

36     The problem with the Applicants' position regarding the impugned Decisions is twofold.

37     First, the Applicants were aware that residency was an issue, given the fact that there already were discrepancies between the citizenship application and the residency questionnaires and neither of these met the statutory test.

38     They were aware of these discrepancies going into the citizenship hearings. The fact that the Judge then asked for ICES consents surely signalled to the Applicants that residency was to be an issue, even if it had not been the subject of discussion at the hearings.

39     With respect to the Applicants' position on credibility, the Judge does not end up basing his decisions on credibility issues arising from the various residency periods. Rather, he simply states that the statutory residency requirement per the Pourghamesi test has not been met in any of the various residency periods on the Record.

40     In other words, the Decisions turned on the failure to meet the statutory test of 1095 days, no matter which version of the residency facts the Judge chose to believe. Indeed, the Judge does not identify which residency total he believes in his Decisions; he simply says that the Pourghamesi test has not been met.

41     The Applicants point to Justice Manson in Abdou v Canada (Citizenship and Immigration), 2014 FC 500 [Abdou], for the proposition that the Judge unfairly failed to provide the opportunity to counter credibility concerns.

42     In Abdou, there were differing accounts of residency as between the application (34 days absent) and the residence questionnaire (354 days absent), and unlike in the present situation, both of those two Abdou residency periods would have met the statutory test, if believed. The Citizenship Judge in Abdou pointed out credibility concerns regarding Mr. Abdou, but according to the applicant's affidavit evidence in that case, did not question him on these concerns during the citizenship interview. Justice Manson relied on Johar v Canada (Citizenship and Immigration), 2009 FC 1015 [Johar], in coming to the conclusion that there had been procedural fairness gaps in failing to provide the applicant with an opportunity to respond.

43     In Johar, like in Abdou, the applicant maintained he had met the physical residency requirement.

44     Justice Manson decided Donahue v Canada (Citizenship and Immigration), 2014 FC 394 [Donahue], one month before he decided Abdou. The facts of Donohue are similar to the instant cases, because differing versions of residency all fell short of the statutory requirement. In Donohue, the applicant also challenged the selection of the citizenship test, as well as procedural fairness in the face of credibility concerns and physical residence discrepancies.

45     Justice Manson found in Donohue that in the circumstances of a clear failure to meet the strict physical presence test, which was open to the Citizenship Judge to choose based on significant jurisprudence, ambiguity around credibility is immaterial.

46     The same principle applies here: it was open to the Judge to choose which test to apply, and there is nothing wrong with choosing the Pourghasemi test.

47     Once that test was chosen by the presiding Citizenship Judge, and once that test was identified by the Judge in his Decisions, any credibility concerns - if there were indeed any - became moot upon the application of the facts to the law. In short, even the best evidentiary scenario of the Applicants' number of days in Canada did not meet the standards of the Pourghasemi test.

48     There is no evidence on this Record that any undertaking or indication was made with respect to the type of test that was going to be applied, as there was in Qin v Canada (Citizenship and Immigration), 2014 FC 846.

·       B. 

Did the Citizenship Judge err in applying the Pourghasemi test for citizenship instead of the Koo test?

49     As stated above, the Court has been clear in numerous cases that it is up to the Citizenship Judge which test to choose: See Knezevic v. Canada (Citizenship and Immigration), 2014 FC 181; Navidi v Canada (Citizenship and Immigration), 2008 FC 408.

50     There are recent cases supporting the rationale of Justice Rennie in Martinez-Caro v Canada (Citizenship and Immigration), 2011 FC 640, which comprehensively reviewed the history of the Pourghasemi strict residency test, and supported its reasons: See Donohue and Huang v Canada (Citizenship and Immigration), 2013 FC 576.

VI. Conclusion

51     This Court finds that it was reasonable for the Citizenship Judge to select and apply the Pourghasemi test.

JUDGMENT

THIS COURT'S JUDGMENT is that the applications in T-89-14 and T-91-14 are dismissed and a copy of these Reasons shall be placed in each Court file. No costs shall be awarded.

DINER J

DISCREPANCY OVER TRAVEL RESULTS IN CITIZENSHIP DECISION OVERTURNED

The Federal Court reversed a decision of a Citizenship Judge who had granted citizenship to an applicant who omitted a number of travel dates from her application. The court held that he explanation by the applicant of "mistakes" was beyond the plausible and therefore the exercise of discretion by the judge was not warranted and crossed the line of what is reasonable.

Canada (Minister of Citizenship and Immigration) v. Pereira

Between
The Minister of Citizenship and Immigration, Applicant, and
Ilda Rosa Moniz Pereira, Respondent

[2014] F.C.J. No. 604

2014 FC 574

Docket: T-1893-13

 Federal Court
Toronto, Ontario

LeBlanc J.

Heard: June 3, 2014.
Judgment: June 17, 2014.

(34 paras.)

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JUDGMENT AND REASONS

1     LEBLANC J.:-- This is an appeal under subsection 14(5) of the Citizenship Act, RSC 1985, c C-29 (the Act) and section 21 of the Federal Courts Act, RSC 1985, c F-7, of a decision of a citizenship judge dated September 25, 2013, granting the respondent's citizenship application under paragraph 5(1) of the Act.

2     For the reasons that follow, the appeal is granted.

I. Background

3     The respondent was born in Portugal in 1984. She immigrated to Canada with her parents when she was six years old. She holds the status of permanent resident since then. On September 9, 2009, she applied for Canadian citizenship. She then reported having been physically present in Canada for the whole four year period immediately preceding the filing of the application (the Reference Period), except for a total of 28 days where she stated having been outside Canada for two business trips and two vacation trips.

4     In the course of the processing of her citizenship application by citizenship authorities, the respondent was required to provide a Residence Questionnaire, which she did in May of 2012. In that questionnaire, she listed the four trips she had reported on her citizenship application but without being able, this time, to provide the dates of those trips abroad. She also listed her employment and education history from June 2005 and her various places of residence in Canada from 1991.

5     In the course of the same process, the respondent was asked to produce an Integrated Customs Enforcement System report (ICES), a document issued by the Canada Border Services Agency, tracking her departures from and arrivals to Canada, as well as her Ontario Health Insurance Plan (OHIP) personal claim history. Her OHIP history showed 13 claims over the four year Reference period.

6     However, her ICES report showed six entries that were not declared on either her citizenship application or Residence Questionnaire. The respondent was also requested, but was enabled, to produce her passport for the Reference Period. In a letter to the citizenship authorities dated June 5, 2012, she explained that when she renewed her expired passport in 2009, the staff of the Portuguese consulate in Toronto, where she made that request, retained that passport and subsequently destroyed it.

7     On September 25, 2103, the respondent attended a hearing before the citizenship judge and on that same day, her citizenship application was approved by the judge.

8     In a fairly short decision, the citizenship judge first noted that the respondent had declared 1432 days of physical presence in Canada during the Reference Period but that there was no passport available to verify that assertion, as her old passport had been repossessed by the Portuguese consular authorities when she applied for a new one.

9     He also noted that the respondent's ICES report showed more entry stamps than those she had reported to the citizenship authorities and that her justification for those "mistakes" was that 'she didn't have a passport available and her memory, of course, failed her'. On this particular issue, the citizenship judge noted the respondent's statement that it was 'entirely possible that she made a few more trips, all business related and very short, outside Canada'.

10     Finally, the judge wrote that the respondent had a full-time job, was married, had been educated and had all her social activities in Canada.

11     The citizenship judge then approved the respondent's citizenship application in the following terms:

·       "Considering all of the above, and based on my careful assessment of the applicant's testimony, as well as my consideration of the information and evidence before me, I am satisfied that the applicant is actually living and has been physically present in Canada on the number of days sufficient to comply with the Citizenship Act. 

·       For all of the above I approve the application for citizenship of MS. PEREIRA." 

II. The Act's Residency requirement

12     Paragraph 5(1)(c) of the Act, which provides for the residency requirement citizenship applicants need to meet in order to be successful, reads as follows:

·       5. (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: 

·       (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 

·       (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; 

...

* * *

·       5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois: 

·       a) 

en fait la demande; 

·       b) 

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: 

·       (i) 

un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, 

·       (ii) 

un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; 

[...]

13     For quite some time, there has been an ongoing debate within this Court as to what paragraph 5(1)(c) of the Act exactly means. Competing jurisprudential schools have emerged from that debate with the result that three different tests are available to citizenship judges in assessing the residency requirement in any given case (Sinanan v Canada (Minister of Citizenship and Immigration) 2011 FC 1347 at paras 6 to 8, [2011] F.C.J. No. 1646 (QL); Huang v Canada (Minister of Citizenship and Immigration) 2013 FC 576 at paras 17 and 18, [2013] F.C.J. No. 629 (QL)).

14     The first test involves strict counting of days of physical presence in Canada which must total 1095 days in the four years preceding the application. It is often referred to as the quantitative test or the Pourghasemi test (Pourghasemi (Re) (FCTD) [1993] 62 FTR 122). The second is a less stringent test which recognizes that a person can be resident in Canada, even while temporarily absent, if there remains a strong attachment to Canada. This test is generally known as the Re Papadogiorgakis test (Re Papadogiorgakis, [1978] 2 FC 208 (QL), 88 DLR (3d) 243 (TD)). Finally, the third test builds on the second one by defining residence as the place where one has centralized his or her mode of living. It is described in the jurisprudence as the Koo test (Re Koo (1992), [1993] 1 FC 286 (QL), [1992] F.C.J. No. 1107 (TD); see also Paez v Canada (Minister of Citizenship and Immigration) 2008 FC 204 at para 13, [2008] F.C.J. No. 292 (QL); Sinanan, above at paras 6 to 8; Huang, above at paras 37 to 40). The last two tests are often referred to as qualitative tests (Huang, above at para 17).

15     The dominant view in this Court's jurisprudence is that citizenship judges are entitled to choose which test they desire to use among these three tests and that they cannot be faulted for choosing one over the other (Pourzand v Canada (Minister of Citizenship and Immigration)2008 FC 395 at para 16, [2008] F.C.J. No. 485 (QL); Xu v Canada (Minister of Citizenship and Immigration) 2005 FC 700 at paras 15 and 16, [2005] F.C.J. No. 868 (QL); Rizvi v Canada (Minister of Citizenship and Immigration) 2005 FC 1641 at para 12, [2005] F.C.J. No. 2029 (QL)).

16     They can be faulted however if they fail to articulate which residency test was applied in a given case (Dina v Canada (Minister of Citizenship and Immigration) 2013 FC 712 at para 8, [2013] F.C.J. No. 758 (QL)).

III. Issue and Standard of Review

17     The Minister of Citizenship and Immigration (the applicant) claims that the citizenship judge's decision approving the respondent's citizenship application is unreasonable in three ways. First, he says that the citizenship judge failed to identify the legal test he used to assess whether the respondent met the Act's residency requirement. Secondly, he contends that the judge's reasons and analysis are wholly inadequate in that they do not sufficiently explain on what grounds the respondent's citizenship application was approved. Finally, he argues that it was unreasonable for the citizenship judge to approve the respondent's application for citizenship given the paucity of, and the inconsistencies in, her evidence on the residency requirement.

18     Both the applicant and the respondent submit that the standard of review applicable to these issues is that of reasonableness. The Court agrees. It is indeed generally accepted in this Court's jurisprudence that a citizenship judge's consideration of the residency requirement under paragraph 5(1)(c) of the Act, whichever the test used by the judge, is a matter of mixed facts and law and is thus reviewable on a standard of reasonableness (Saad v Canada (Minister of Citizenship and Immigration), 2013 FC 570 at para 18, [2013] F.C.J. No. 590 (QL); Canada (Minister of Citizenship and Immigration) v Rahman, 2013 FC 1274 at para 13, [2013] F.C.J. No. 1394 (QL); Balta v Canada (Minister of Citizenship and Immigration), 2011 FC 1509 at para 5, [2011] F.C.J. No. 1830 (QL); Canada (Minister of Citizenship and Immigration) v Baron, 2011 FC 480 at para 9, [2011] F.C.J. No. 735 (QL); Canada (Minister of Citizenship and Immigration) v Diallo, 2012 FC 1537 at para 13, [2012] F.C.J. No. 1615 (QL); Huang, above at paras 24 to 26).

19     This means, as is well known, that the Court's review analysis is concerned with the existence of justification, transparency and intelligibility within the decision-making process and also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir v New Brunswick,2008 SCC 9 at para 47, [2008] 1 SCR 190).

IV. Analysis

20     This case can be entirely resolved on the applicant's third ground of appeal. Indeed, even assuming that the citizenship judge clearly identified the residency test he applied to the facts of this case, which I believe he did in any event, and irrespective of the quality of his reasons for the decision, the respondent, in my view, failed to establish, with sufficient and credible evidence, that she met the Act's residency requirement. The citizenship judge's conclusion to the contrary was, in the circumstances of this case, an unreasonable outcome.

21     As it has been affirmed on many occasions by this Court, Canadian citizenship is a privilege that ought not to be granted lightly and the onus is on citizenship applicants to establish, on a standard of balance of probabilities, through sufficient, consistent and credible evidence, that they meet the various statutory requirements in order to be granted that privilege (Canada (Minister of Citizenship and Immigration) v Elzubair, 2010 FC 298 at paras 19 and 21; Canada (Minister of Citizenship and Immigration) v El Bousserghini, 2012 FC 88 at para 19; Canada (Minister of Citizenship and Immigration) v Dhaliwal, 2008, FC 797 at para 26; Abbas v Canada (Minister of Citizenship and Immigration),2011 FC 145 at para 8; F.H. v McDougall, 2008 SCC 53, [2008] 3 SCR 41).

22     The Court is mindful that this burden ought not to be excessive and that although citizenship is a privilege, the Act does not require corroboration on all counts (El Bousserghini, above at para 19). The Court is also mindful in this regard that it is up to the citizenship judge, taking the context into consideration, to determine the extent and nature of the evidence required in any given case (El Bousserghini, above at para 19).

23     There is however a point beyond which this exercise of discretion, or lack of it, on the part of the citizenship judge cannot be held to be reasonable. This point was reached here when the citizenship judge, who was already deprived of the benefit of the expired passport to verify the respondent's number and length of absences from Canada during the Reference Period, accepted the respondent's rather weak and unconceivable explanation on her unreported absences and did it without inquiring further into these absences.

24     I agree with the applicant that at that point the citizenship judge abdicated his responsibilities.

25     It is indeed one thing for a citizenship applicant to have no supporting evidence, in the form of an expired passport, of the number and length of his or her absences from Canada during the relevant assessment residency period. This is not fatal to the applicant if a reasonable explanation can be provided as to the unavailability of the passport (ElBousserghini, above at para 19). However, it is quite another thing, as is the case here, not to have that kind of supporting evidence and, in addition, to grossly misrepresent to the citizenship authorities the number of absences from Canada and have no reasonable explanation for that.

26     Here, the respondent justified the fact her ICES report showed more entry stamps than those she had reported to the citizenship authorities by saying that her memory had failed her. The citizenship judge accepted those explanations.

27     The problem is that this discrepancy accounted for 6 of the 10 trips the respondent made abroad during the Reference Period. This amounted to more than one half of her absences from Canada during that time. This is not insignificant. But more importantly, it is hardly conceivable that someone's memory would fail him or her to such a degree. What is particularly inconceivable is that while the respondent could not remember this significant number of trips abroad, she was apparently able to remember that they were all short trips.

28     This whole story was, on its face, hardly credible. In any event, it showed on the part of the respondent a degree of carelessness which is incompatible with the spirit of the Act and the very nature and purpose of the naturalization process. In accepting that story as sufficient justification for this major discrepancy in the respondent's citizenship record and in relying on her testimony to establish residency, without requiring any form of corroboration in a context where the record showed strong indications of material omissions, the citizenship judge sent the wrong message. He abdicated his responsibilities and discredited the whole process. He basically gave 'carte blanche' to the respondent and, by doing so, significantly altered the onus citizenship applicants bear in establishing that they qualify for a grant of Canadian citizenship.

29     In such a context, the citizenship judge had no other choice, in the Court's view, but to either dismiss the respondent's application as being unsubstantiated for lack of sufficient, consistent and credible evidence (Abbas, above at para 8), or inquire further into its deficiencies before making a decision. Neither was done. This was an unreasonable outcome on the face of the record and of the law, which requires a more rigorous approach to the assessment of citizenship applications (Elzubair, above at para 21; Dhaliwal, above at para 26).

30     The respondent's main argument is that there is a presumption that her testimony was truthful. Like most presumptions, this presumption will only operate to a certain degree. Here, with the omissions and contradictions as to the number of trips abroad, the weak and fainted justification for those omissions and contradictions and the lack of corroborative evidence, there is simply no room for that presumption to apply (Canada (Minister of Employment and Immigration) v Dan-Ash, (FCA) [1988] F.C.J. No. 571 (QL); Bakare v Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 31 (QL); Adu v Canada (Minister of Employment and Immigration), (FCA) [1995] F.C.J. No. 114 (QL); Diadama v Canada (Minister of Citizenship and Immigration), 2006 FC 1206, [2006] F.C.J. No. 1518 (QL); Kahiga v Canada (Minister of Citizenship and Immigration), 2005 FC 1240 at para 10, [2005] F.C.J. No. 1538 (QL); Oppong v Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1187 at para. 5 (QL)).

31     As Mr. Justice Harrington pointed out in El Bousserghini, above at para 19, it would be extremely unusual and perhaps reckless to rely on the testimony of an individual to establish his residency, with no supporting documentation. In the context of the present case, where, as indicated above, there was not only an old passport availability issue, but also, unlike in El Bousserghini, an issue of undeclared absences from Canada, it was reckless to rely solely on the respondent's testimony to establish her residency.

32     Here, there was nothing on record allowing the citizenship judge to measure the impact of the undeclared absences on the number of days the respondent was required to be physically present in Canada during the Reference Period. As the citizenship judge clearly appears to have applied the physical presence residency test to the respondent's case, this issue became of central importance but it was not treated by the citizenship judge in a way that meets the standard of reasonableness.

33     As a result, the applicant's appeal is granted and the citizenship judge's decision, quashed. As the applicant did not seek costs, none will be awarded.

34     As the law stands now, the respondent is at liberty to re-apply for citizenship at the moment of her choosing. If she does, this will hopefully be done in a way which is respectful of the Act's spirit and of the nature and importance of the naturalization process.

JUDGMENT

THIS COURT'S JUDGMENT is that the appeal is granted, without costs.

LEBLANC J.

CITIZNESHIP DECISION REVERSED DUE TO LENGTHY ABSENCES FROM CANADA BY ELDERLY WOMAN

The case below provide a short summary of the various citizenship tests that the citizenship judge may apply. In this case, however, it was unclear which test was applied, so the Federal Court quashed the grant of citizenship and ordered t he case returned for a new decision.

Canada (Minister of Citizenship and Immigration) v. Mera

Between
The Minister of Citizenship and Immigration, Applicant, and
Segunda Manuela Mera, Respondent

[2014] F.C.J. No. 509

2014 FC 473

Docket: T-1811-13

 Federal Court
Toronto, Ontario

Mactavish J.

Heard: May 14, 2014.
Judgment: May 14, 2014.

(21 paras.) 

---

JUDGMENT AND REASONS

1     MACTAVISH J.:-- The Minister of Citizenship and Immigration appeals from a decision of a Citizenship Judge approving Segunda Manuela Mera's application for Canadian citizenship. For the reasons that follow, I have concluded that the appeal must be allowed.

I. Background

2     Ms. Mera is an 82 year old permanent resident of Canada who is originally from Ecuador. She has four daughters living in Canada, and three sons who live in Ecuador. She lives with one of her daughters while she is in Canada, and owns her own home in Ecuador.

3     Ms. Mera filed her citizenship application on August 7, 2005. Thus the relevant four-year period for assessing her residence was from August 7, 2005 until August 7, 2009.

4     Ms. Mera indicated on her citizenship application that she was absent from Canada for four trips totalling 542 days, and that she was physically present in Canada for approximately 918 days during the relevant period.

5     On September 11, 2013, Ms. Mera attended before a Citizenship Judge, following which the Judge requested a copy of her Entry and Exit report (an "ICES report") from the Canada Border Services Agency. The ICES report essentially confirmed Ms. Mera's evidence regarding her travels outside of Canada, although it did not record a brief trip to Mexico in 2008. This omission was not material to the decision of the Citizenship Judge, nor is it material to the outcome of this appeal.

6     According to Ms. Mera, her last trip outside Canada commenced on July 25, 2009, although the Citizenship Judge erroneously found that her last trip had commenced on January 21, 2010.

7     The Citizenship Judge approved Ms. Mera's application on September 12, 2013. Considering all of the evidence, including Ms. Mera's "pattern of ... absences" and her testimony, he concluded that she"was actually living and was physically present in Canada on the number of days sufficient to comply with the Citizenship Act."

II. Analysis

8     To be entitled to Canadian citizenship, an applicant must demonstrate that he or she has been resident in Canada for three out of the four years immediately preceding the application for citizenship.

9     The jurisprudence of this Court has recognized three tests that may be used in determining whether an applicant has met the residency requirements of the Citizenship Act, R.S.C. 1985, c. C-29.

10     The first is the physical presence test established by this Court in Re Pourghasemi [1993] F.C.J. No. 232. This test only asks whether the applicant has been physically present in this country for a total of three years out of four, or a minimum of 1095 days.

11     The second test is that articulated in Re Papadogiorgakis, [1978] 2 F.C. 208; [1978] F.C.J. No. 31. This is a less stringent test in that it looks at whether an applicant has an established residence and strong attachment to Canada, even if he or she has been temporarily absent away from Canada.

12     The third test is one often used in citizenship cases. This is the so-called "Koo" test, established in Re Koo, [1993] 1 F.C. 286, [1992] F.C.J. No. 1107. The Koo test looks at residence as being the place where one "regularly, normally or customarily lives" or has "centralized his or her mode of existence". Re Koo identifies six factors that are to be considered in assessing whether this test has been met. These include:

·        (1) 

physical presence in Canada for a long period prior to recent absences; 

·        (2) 

whether immediate family and dependants are resident; 

·        (3) 

whether the pattern of physical presence in Canada indicates a returning home or just visiting; 

·        (4) 

the extent of physical absences; 

·        (5) 

whether physical absence is caused by a clearly temporary situation; and 

·        (6) 

the quality of the connection to Canada. 

13     It is not clear from a review of the Citizenship Judge's brief reasons which test he applied in coming to the conclusion that Ms. Mera met the residency requirements of the Citizenship Act. As a result, the decision lacks the justification, transparency and intelligibility required of a reasonable decision. Nor is it possible to ascertain from the Citizenship Judge's reasons whether the decision falls within the range of possible acceptable outcomes that would be defensible in light of the facts and the law: see Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47, [2008] 1 S.C.R. 190.

14     In finding that Ms. Mera met the residency requirement of the Act, the Citizenship Judge states that he was satisfied that Ms. Mera "was actually living and was physically present in Canada on the number of days sufficient to comply with the Citizenship Act". This language suggests that he used the Re Pourghasemi physical presence test.

15     If that is so, the finding that Ms. Mera had satisfied the requirements of the physical presence test is perverse, given that the Judge had specifically found as a fact that Ms. Mera had only been physically present in Canada for 922 days during the relevant period, making her 173 days short of the requisite 1095 days.

16     If, as Ms. Mera suggests, the Citizenship Judge intended to apply the one of the more qualitative tests for residency, he failed to explain how he arrived at the conclusion that she had established residency in Canada. There is no indication that he considered the fact that Ms. Mera continues to own a home in Ecuador, and that she does not own a home in Canada. While this is by no means determinative of the issue of residency, they are relevant considerations that did have to be addressed in determining whether Ms. Mera had established residency in Canada.

17     Nor did the Citizenship Judge consider a number of the Re Koo factors in order to determine where Ms. Mera "regularly, normally or customarily lives" or had "centralized her mode of existence".

18     For example, no consideration appears to have been given to whether Ms. Mera's physical presence in Canada indicates that she was returning home to Canada after her lengthy trips to Ecuador, or whether she was just visiting Canada from her home in Ecuador. Nor was any attempt made to determine whether her connection to Canada was more substantial than her connection to Ecuador, in light of her substantial ties to both countries.

19     Having failed to properly apply any of the three recognized tests for residency, it follows that the Citizenship Judge's conclusion that Ms. Mera had established residence in Canada was unreasonable.

III. Conclusion

20     As a result, the Minister's appeal is allowed, without costs. The Citizenship Judge's September 12, 2013 decision is set aside. The matter is remitted to a different Citizenship Judge for re-determination in accordance with one of the recognized tests for residency.

21     As was noted by counsel for the Minister, it is also open to Ms. Mera to make a fresh application for citizenship. This would have the effect of creating a different residency period for her new application. In light of information provided by Ms. Mera's counsel at the hearing of the appeal, it appears that she may well satisfy the physical presence test for this more recent four year period.

JUDGMENT

THIS COURT ORDERS AND ADJUDGES that:

·        1. 

The Minister's appeal is allowed, without costs. 

·        2. 

Ms. Mera's application for Canadian citizenship is remitted to a different Citizenship Judge for re-determination in accordance with one of the recognized tests for residency. 

MACTAVISH J.

APPLICANT FOR CITIZENSHIP HIT WITH COSTS

It is very unusual for the Federal Court to order costs in citizenship cases. In fact, it is very rare. eh applicant below got hit with a costs order against him after losing the judicial review application. in a case where he apparently was  less than forthcoming about his absences from Canada.

 Irani v. Canada (Minister of Citizenship and Immigration)

Between
Shaker Irani, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 1393

2013 FC 1273

Docket T-642-13

 Federal Court
Vancouver, British Columbia

Zinn J.

Heard: December 5, 2013.
Judgment: December 19, 2013.

(18 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

1     ZINN J.:-- This is an appeal pursuant to subsection 14(5) of the Citizenship Act, RSC 1985, c C-29 [Act], of a decision of Citizenship Judge Wong, dated February 18, 2013, refusing Mr. Irani's application for Canadian citizenship on the basis that he did not meet the residency requirement in paragraph 5(1)(c) of the Act.

2     Mr. Irani is a citizen of Iran. He moved to Canada on July 20, 2004, and was granted permanent resident status on June 24, 2006, after being sponsored by his wife. He applied for Canadian citizenship on August 7, 2009; this makes the "relevant period" for calculating physical presence in Canada, August 7, 2005 to August 7, 2009.

3     Mr. Irani submits that factual errors led the Judge to believe that he misrepresented facts, and coupled with a failure to put his concerns to Mr. Irani, led the Judge to apply the physical presence test rather than the qualitative test set out in Koo (Re), [1993] 1 F.C. 286, [1992] F.C.J. No. 1107 [Koo].

Evidence of Absences from Canada

4     In his citizenship application, Mr. Irani declared two trips outside Canada for a total absence of 305 days - leaving him 995 days of physical presence in Canada - 100 days short of the statutory minimum of 1,095 days.

5     In the Residence Questionnaire he was later asked to provide, Mr. Irani declared four trips outside Canada for a total absence of 378 days - leaving him 922 days of physical presence in Canada - 173 days short of the statutory minimum of 1,095 days.

6     The Judge interviewed Mr. Irani and concluded, based on the documentation and the interview that he was not satisfied "on a balance of probabilities, that the declarations on either the original declaration or Residence Questionnaire accurately reflects the number of days you were, in fact, physically present in Canada." He found that Mr. Irani was not forthcoming as to his absences from Canada.

7     The Judge stated that Mr. Irani's "failure to declare absences from Canada, when the contrary is shown on your passport and other documents such as credit card statements during the relevant period cast significant doubt on the veracity of your application which has not been dispelled by documentary evidence." He observes that in Canada (Minister of Citizenship and Immigration) v Dhaliwal, 2008 FC 797, "misrepresentation by an applicant for citizenship puts into question their credibility and has the potential to impact the weight given to their evidence." The Judge then states: "In the circumstances, I find that it is appropriate to hold you strictly to the test articulated by Mr. Justice Muldoon and I find that you have been unable to demonstrate, on a balance of probabilities, that you were physically present in Canada for at least 1,095 [days] during the relevant period."

8     In this appeal, Mr. Irani now admits that according to the stamps in his passport he was actually outside Canada 160 days before he became a permanent resident and 456 days since he became a permanent resident. Pursuant to paragraph 5(1)(c)(ii) of the Act, a person gets credit for only one-half day of residence for each full day of residence prior to being granted permanent resident status. According to the Respondent, with this admission of absences, Mr. Irani was physically present in Canada only 764.5 days and was thus 330.5 days short of the minimum under the Act.

Issues

9     Mr. Irani submits that he was denied procedural fairness because the Judge failed to put to him, and ask him to explain the additional absences the Judge (apparently mistakenly) found. He also says that the errors led the Judge to impose the "punitive" strict count test, rather than the more permissive Koo test.

Analysis

10     I agree with Mr. Irani that the Judge erred in his interpretation of the dates of the stamps in his passport. The Judge interpreted an entry stamp to Amsterdam which read "06.04.07" as an entry on April 6, 2007, but then re-read the same stamp as another entry on June 4, 2007. The Judge similarly interpreted an exit stamp from Amsterdam which read "09.04.07" as an exit on September 4, 2007, when in fact, Mr. Irani had left Amsterdam on April 9, 2007.

11     The Judge suspected that in October 2006, Mr. Irani was in the United States but had not disclosed this trip in his application. The Judge noted that on one of Mr. Irani's credit card statements, there was a charge on October 16, 2006 from a restaurant in Dallas, Texas. Mr. Irani explained in his affidavit filed in this appeal that his friend owned the restaurant, had borrowed money from him, and the easiest way to pay Mr. Irani back was to charge his credit card. Mr. Irani says that he was not actually physically present at the restaurant to incur the charge. I am prepared to give Mr. Irani the benefit of the doubt.

12     Finally, the Judge was concerned about the declaration in Mr. Irani's expired Iranian passport that his residence was in the United States. Mr. Irani may well have been able to provide an explanation to address the Judge's concerns, had the Judge put his concern to Mr. Irani.

13     Nonetheless, although the Judge may have erred in his calculation of the days of absence, Mr. Irani now admits that he misrepresented his absences in both the initial application and in the Residence Questionnaire. On the evidence of Mr. Irani, he misrepresented his days present in Canada at least twice - although he says they were innocent and not deliberate attempts to mislead. Accordingly, the Judge's observation that he "found it challenging to determine the exact number of days you were physically present during the relevant period because of your undeclared absences in your passport" is apt, even though he referenced absences other than those Mr. Irani now acknowledges.

14     It was the misrepresentation by Mr. Irani that led the Judge to use the strict count test, as he was entitled to do. In such circumstances, the facts before the Judge were identical to those in Dhaliwal which he cited for the proposition that misrepresentation goes to weight of the evidence and credibility. In any event, "a citizenship judge does not have to justify her choice of test" (Idahosa v Canada (Citizenship and Immigration), 2013 FC 739, para 14). A Citizenship Judge only needs to apply the test consistently. Further, I agree with Justice Crampton's observation in Huang v Canada (Minister of Citizenship and Immigration), 2013 FC 576, that "it is particularly appropriate that deference be accorded to a citizenship judge's decision to apply any of the three tests that have a long and rich heritage in this Court's jurisprudence" given the divided state of the jurisprudence on this issue (para 25, emphasis added).

15     I can find no reversible error in the Judge applying the strict count test in these circumstances.

16     Further, on Mr. Irani's current accounting of the number of days spent in Canada, he actually has a greater shortfall than what the Judge had estimated.

17     To summarize, I find that the Judge erred by not putting to Mr. Irani, his concerns regarding Mr. Irani's passport stamps, the credit card entry, and the country of residence declaration in his Iranian passport. Having not been made aware of these concerns, Mr. Irani was not given an opportunity to disabuse the Judge of those concerns. However, despite these errors, at the end of the day, they were errors that were not material because Mr. Irani has now admitted that his previous two calculations in his citizenship application and his Residence Questionnaire were inaccurate and, by his own admission and his present account of his absences in this application, is still short of the statutorily required number of days. Therefore, in my view, the breaches of procedural fairness would not have resulted in a different decision being rendered by the Judge.

18     This appeal is dismissed. The Respondent is entitled to its costs which I fix at the sum agreed upon by the parties - $2,000.00.

JUDGMENT

THIS COURT'S JUDGMENT is that this appeal is dismissed and the Respondent is awarded its costs, fixed at $2,000.00.

ZINN J.

MISREPRESENTATION OF STATUS IN THE US LEADS TO CANADIAN CITIZENSHIP REFUSAL

In the case below, the applicants appear to have misrepresented the fact that they have obtained status in the United States and tried to obtain Canadian citizenship even though they did not meet the residency requirements.  Applicants are cautioned never to misrepresent their status or make false declarations in any application.

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

[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.

(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:

 

·        5. 

(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: 

 

·        (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 

·        (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; 

 

·        (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. 

* * *

 

·        5. 

(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois : 

 

·        a) 

en fait la demande; 

·        b) 

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 : 

 

·        (i) 

un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, 

·        (ii) 

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. 

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:

 

·        i) 

What is the applicable standard of review; 

·        ii) 

Did the Citizenship Judge err in selecting the wrong test for residency under paragraph 5(1)(c) of the Act; 

·        iii) 

Did the Citizenship Judge err in his assessment of credibility; and 

·        iv) 

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.