Canada (Minister of Citizenship and Immigration) v.
Achkar
Between
The Minister of Citizenship and Immigration, Plaintiff, and
Jihad Achkar, Marie Sassine, Youmna Achkar,
Yasmina Achkar, Anis Achkar,
Iyad Achkar, Defendants
The Minister of Citizenship and Immigration, Plaintiff, and
Jihad Achkar, Marie Sassine, Youmna Achkar,
Yasmina Achkar, Anis Achkar,
Iyad Achkar, Defendants
[2015] F.C.J. No. 597
[2015] A.C.F. no 597
2015 FC 605
Docket: T-817-14
Docket: T-817-14
Federal Court
St-Louis J.
Heard: April 28, 2015.
Judgment: May 8, 2015.
St-Louis J.
Heard: April 28, 2015.
Judgment: May 8, 2015.
(42 paras.)
JUDGMENT AND REASONS
· ST-LOUIS J.:--
I. INTRODUCTION
1 The
Minister of Citizenship and Immigration (the Minister) seeks summary judgment
declaring that the defendants, six members of the same family, obtained their
Canadian citizenship by false representations or fraud, or by knowingly
concealing material circumstances
2 I
am satisfied that the defendants have not raised a genuine issue for trial as
to whether they obtained their Canadian citizenship as a result of false
representations made in their citizenship applications and consequently I will
issue the summary judgment sought by the Minister.
II. BRIEF STATEMENT OF FACTS
3 The
defendants are a family made up of the spouses, Jihad Achkar and Marie Sassine,
and their four children, Youmna, Yasmina, Anis and Iyad.
4 On
July 6, 2001, the defendants arrived in Canada and were landed as permanent
residents of Canada.
5 On
January 20, 2005, Ms. Sassine signed her application for Canadian citizenship
and also signed the application for each of the couple's children. Thus, the
reference period for their applications is from July 6, 2001, to January 20,
2005.
6 Ms.
Sassine stated on her application that she was absent from Canada for 157 days
and present 1137 days during the reference period. Ms. Sassine stated on the
application that she signed for each child that they were not absent from
Canada for six months or more during the reference period.
7 On
March 4, 2005, Mr. Achkar signed his application for Canadian citizenship. The
reference period for his application is from July 6, 2001, to March 4, 2005.
8 Mr.
Achkar stated on his application that he was absent from Canada for 138 days
and present 1199 days during the reference period.
9 Moreover,
all the members of the family indicated only Canadian home addresses during the
entire reference period.
10 On
May 30, 2006, Mr. Achkar was granted Canadian citizenship and on April 11,
2006, Ms. Sassine and the four children were granted Canadian citizenship.
11 On
November 3, 2011, pursuant to section 18 of the Citizenship
Act, RSC 1985, c C-29 (Citizenship
Act), the Minister served on each defendant notices of
citizenship revocation dated June 29, 2011, (the Notices) informing them that
he intended to file a report with the Governor in Council stating that they
obtained Canadian citizenship by false representation or fraud or by knowingly
concealing material circumstances so that their Canadian citizenship could be
revoked.
12 In
the Notices sent to Mr. Achkar and Ms. Sassine, the Minister claims that they
[TRANSLATION] "failed to declare all of [their] absences from Canada
during the four years immediately preceding the date of their citizenship
applications [and made] false representations on their citizenship applications
with respect to the residency requirement during the four years immediately
preceding the date of their citizenship applications."
13 In
the Notices sent to the children, the Minister claims that [TRANSLATION]
"[their] parents failed to declare all of their absences from Canada
during the four years immediately preceding the date of their citizenship
applications [and] provided false information on their citizenship applications
with respect to their residency in Canada during the four years immediately
preceding the date of their citizenship applications."
14 Indeed,
according to the evidence adduced by the Minister, the parents allegedly were
not present in Canada for the number of days indicated in their forms, the
children allegedly were absent from Canada for over six months and all the
family members allegedly did not live at the home addresses provided.
15 Indeed,
contrary to the information provided in their citizenship applications, the
defendants came to Canada on July 6, 2001, to obtain their permanent resident
status, stayed in the country for a few weeks to compete the administrative
procedures and then left to live in Lebanon. During the following two years,
the parents returned to Canada only a handful of times and the children never
returned.
16 The
family came to Canada and lived there only from July 2003 to July 2006.
17 On
November 3, 2011, the defendants requested that their case be referred to the
Federal Court in accordance with the provisions of subsection 18(1) of the Citizenship Act.
18 On
April 3, 2014, the Minister filed a statement of claim under Rule 171(a)(i) of the Federal
Courts Rules, SOR/98-106 (the Rules). On September 15,
2014, the defendants filed their statement of defence and on September 30,
2014, the Minister filed his reply.
19 In
their statement of defence, the defendants admit that they made false
representations on their applications and that they were not present in Canada
the number of days stated in their Canadian citizenship applications. It is
difficult to follow their reasoning when they try to justify their actions
since they state that they were not informed of the need to be physically
present in Canada while at the same time claiming that they were informed of
that requirement by an officer of the Canadian Border Services Agency in
December 2002, and thus they then decided to reside in Canada.
20 The
defendants allege that they were scammed by their immigration consultant, they
made their representations in good faith, they are innocent even if they made
false or misleading representations and that the parents and particularly the
minor children did not intend to deceive the Minister. The defendants even
contend that the Minister himself is responsible for their actions since his
lax border controls encourage applicants for Canadian citizenship to commit
fraud.
21 On
October 28, 2014, the defendants filed an affidavit of documents under Rule 223
and on November 3, 2014, the Minister filed an affidavit of documents under the
same rule.
22 However,
the defendants did not file any affidavit to establish the facts within their
personal knowledge.
III. ISSUE
23 The
Court must determine whether this case raises a genuine issue for trial or, on
the contrary, whether it may find that a genuine issue for trial has not been
raised and consequently grant summary judgment.
IV. LEGISLATIVE FRAMEWORK
Loss of
Citizenship
24 Subsection
10(1) of the Citizenship Act
provides that "where the Governor in Council, on a report from the
Minister, is satisfied that any person has obtained ... citizenship ... by
false representation or fraud or by knowingly concealing material
circumstances", the person ceases to be a citizen (paragraph 10(1)(a), subject to section 18 of this Act.
25 Subsection
18(1) of the Citizenship Act
provides, however, that the Minister shall not make a report under section 10
unless the Minister has given notice of his intention to do so to the person in
respect of whom the report is to be made and (a) that person does not within
thirty days after the day on which the notice is sent, request that the
Minister refer the case to the Court; or (b) that the person does so request
and the Court decides that there has been false representation or fraud or
knowing concealment of material circumstances.
26 The
referral set out in subsection 18(1) of the Citizenship
Act has been deemed "essentially an investigative
proceeding used to collect evidence of facts surrounding the acquisition of
citizenship, so as to determine whether it was obtained by fraudulent
means" (Canada (Minister of Citizenship and
Immigration) v Obodzinsky, 2002 FCA 518, at para 15).
27 Thus,
as Justice Mactavish stated, "[t]he task for the Court in a proceeding
such as this is to make factual findings as to whether the defendants obtained
their Canadian citizenship by false representation or fraud or by knowingly
concealing material circumstances. Findings made by this Court under paragraph
18(1)(b) of the Citizenship Act are final, and cannot be
appealed." (Canada (Minister of Citizenship and
Immigration) v Houchaine, 2014 FC 342 at para 12).
28 The
Court's findings may form the basis of a report submitted by the Minister to
the Governor in Council for the revocation of citizenship.
29 The
burden is on the Minister to demonstrate, on the balance of probabilities, that
the defendants obtained their Canadian citizenship by false representation or
fraud or by knowingly concealing material circumstances (Canada (Minister of Citizenship and Immigration) v Skomatchuk, 2006 FC 994 at para 21).
30 The
Court has established certain principles in that regard. Thus, citizenship
applicants must have intended to mislead the decision-maker so that a technical
error made innocently or inadvertently does not result in a declaration under
section 10 (Canada (Minister of Citizenship and
Immigration) v Savic, 2014 FC 523 at para 74).
31 The
Court has also established that "'willfull blindness', when practised by
an applicant for Canadian citizenship in the pursuit of his or her application,
is not to be condoned. ...In those circumstances, the applicant for Canadian
citizenship, when faced with a situation of doubt, should invariably err on the
side of full disclosure to a citizenship judge or citizenship official." (Canada (Minister of Citizenship and Immigration) v Phan, 2003 FC 1194 at para 33).
32 Last,
in situation where a parent signs the application for a minor child, the Court
has confirmed that, since the Citizenship Act permits a parent to make a citizenship application on behalf of
their minor child, any allegation of false representations or fraud or knowing
concealment of material circumstances must pertain to the acts or omissions of
the parent and thus, the child does not have to intend to mislead the
decision-maker (Canada (Minister of Citizenship and
Immigration) v Zakaria, 2014 FC 864 at para 84).
Summary Judgment
33 Rule
215 of the Federal Court Rules
states that the Court shall grant a summary judgment if on a motion for summary
judgment the Court is satisfied that there is no genuine issue for trial with
respect to a claim or defence. There is no genuine issue for trial when the summary
judgment proceeding "(1) allows the judge to make the necessary findings
of fact, (2) allows the judge to apply the law to the facts, and (3) is a
proportionate, more expeditious and less expensive means to achieve a just
result." (Hryniak v Mauldin,
2014 SCC 7 at para 49).
34 In
that type of proceeding, it is well settled that the "defendant must put
its 'best foot forward' and this requires that the defendant lead evidence and
make an argument that there is a genuine issue requiring a trial." (Moroccanoil Israel Ltd v Lipton, 2013 FC 667
at para 10).
V. ANALYSIS
35 The
defendants admit that they made false representations in their citizenship
applications and the Minister submitted the documents needed to support his
claims.
36 The
Court reviewed the documents on the record and is satisfied that the Minister
met his burden and that the defendants made false representations. Indeed, they
failed to declare material facts, specifically that for all intents and
purposes they were absent from Canada from July 2001 to July 2003, that the
children were absent from Canada for periods of six months or more and that the
family members did not live at the home address provided from July 2001 to July
2003. The copies of the children's school records were probative here since
they confirm that the children went to school in Lebanon until the end of the
2003 school year.
37 The
defendants chose not to adduce affidavit evidence to support their arguments.
They have no obligation under the Rules to adduce such affidavits; however,
failure to do so considerably limits their evidence and their submissions.
Indeed, filing an affidavit makes it possible to establish the facts that a
party relies upon in its representations (Palmar Inc v
Canada, (1998), 98 GTC 6281 at para 4 (FCTD)) and in a
summary judgment matter, the Court weighs the evidence contained in the
affidavits to determine if there is a genuine issue for trial (0871768 BC Ltd v Aestival (Vessel), 2014 FC
1047 at para 55).
38 The
defendants also submitted that they would like a trial in order to be able to
adduce the evidence to support their defence. As mentioned above, they had to
make their best arguments in relation to this motion for summary judgment in
order to prove that there is a genuine issue for trial, and thus, the Court
cannot agree with their position.
39 Since
they chose not to submit affidavits, the defendants did not adduce evidence to
support their arguments, particularly evidence of their understanding of
whether there was a need to be physically present in Canada during the period
from July 2001 to July 2003. Moreover, it should be recalled that they admitted
in their statement of defence that they made false representations in their
citizenship applications and they reiterated those admissions before the Court
during the hearing.
40 Both
in their statement of defence and before the Court, they tried to claim that
they were misled and confused in their interpretation of the residency
requirements for granting citizenship.
41 On
the contrary, the Court is satisfied that the defendants' false representations
and factual omissions are not innocent and that if they had been in doubt, they
should have disclosed all the information about their situation in their
citizenship applications.
42 Last,
as mentioned above, the Court finds that any allegation of false
representations or fraud or knowing concealment of material circumstances must
pertain to the acts or omissions of the parent acting on behalf of their
children, and thus, the children do not have to have intended to mislead the
decision-maker
JUDGMENT
· THIS COURT ORDERS AND ADJUDGES that:
Each of the defendants,
Jihad Achkar, Marie Sassine, Youmna Achkar, Yasmina Achkar, Anis Achkar and
Iyad Achkar obtained citizenship under this Act by false representation or
fraud or by knowingly concealing material circumstances within the meaning of
paragraph 18(1)(b) of the Citizenship Act, RSC 1985, c C-29;-
The plaintiff is
entitled to costs based on the upper end of Column V of Tariff B to the Federal Courts Rules, SOR/98-106 .
No comments:
Post a Comment