COSTS ORDERED IN CITIZENSHIP CASE

It is quite unusual for the Federal Court to order costs in immigration or citizneship cases. It is difficult to discern why costs were awarded against the applicant in this case, although it appears that the court may have found the evidence heavily weighted against the applicant.

Baig v. Canada (Minister of Citizenship and Immigration

Between Ghazanfar Baig, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 963

2012 FC 858

Docket T-1811-11

Federal Court
Ottawa, Ontario

Rennie J.

Heard: May 30, 2012.
Judgment: July 5, 2012.

(21 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

1     RENNIE J.:-- The applicant appeals, pursuant to section 14(5) of the Citizenship Act, RSC, 1985, c C-29 (Citizenship Act) the decision of Citizenship Judge K. Mohan (Judge), dated September 7, 2011, rejecting the applicant's application for a grant of Canadian citizenship pursuant to section 5(1) of the Citizenship Act. The appeal being brought pursuant to subsection 14(5) of the Citizenship Act is governed by the Federal Courts Rules (SOR/98-106) (Rules) pertaining to applications; hence the parties status' as applicant and respondent. The Citizenship Act does not provide for further appeals following a disposition by this Court. For the reasons that follow the appeal is dismissed.

Facts

2     The applicant, Ghazanfar Baig, is a citizen of Pakistan. He and his family were granted permanent residence in Canada on August 20, 2004. His wife and three children are all now Canadian citizens.

3     The applicant applied for Canadian citizenship on April 8, 2008 and had his citizenship hearing on July 18, 2011.

4     In his decision dated September 7, 2011, the Judge applied the residence test articulated by Justice Muldoon in Re Pourghasemi, [1993] FCJ No 232 and endorsed in Martinez-Caro v Canada (Minister of Citizenship and Immigration), 2011 FC 640. Under that test, the applicant met the residence requirement of the Citizenship Act if he established that he had been physically present in Canada for 1095 days in the relevant four-year period. The Judge determined, correctly, that the relevant period in this case was between August 20, 2004, and April 8, 2008.

5     At the applicant's hearing the Judge notified the applicant that he was not satisfied that the applicant met the residence requirement and afforded him an opportunity to provide additional documentation in support of his application.

6     The Judge found that there were many gaps during the relevant period in which it was difficult to determine whether the applicant was present in Canada. The Judge found insufficient evidence to substantiate that the applicant worked as a self-employed consultant in Canada during that period. The Judge noted that the applicant's reported income on his tax returns for 2004-2007 was very low considering he was supporting a family of five. The Judge also found that the applicant had not provided a clear audit trail of his revenues and expenses, as requested.

7     The Judge noted that the applicant provided health records for the relevant period, but found that they revealed few medical appointments in 2005, and none in 2006. While there were several visits from 2007 onwards, these records did not establish that the applicant was physically present for 2005 and 2006. He noted that the onus was on an applicant to establish that he or she fulfills the requirements for citizenship and concluded that the applicant had not established, on a balance of probabilities, that he had been physically present in Canada for the required 1095 days.

8     Finally, in accordance with section 5(4) of the Citizenship Act, the Judge had considered whether to make a favourable recommendation for a discretionary grant of citizenship. He decided not to make a favourable recommendation because there were inadequate circumstances of special and unusual hardship, or services of an exceptional value to Canada to warrant such a recommendation. The application was therefore not approved.

Standard of Review/Issue

9     The parties frame the issues as follows:

·       i. 

Was the Judge's decision reasonable? 

·       ii. 

Were the Judge's reasons adequate? 

10     The parties agree that the Judge's findings of fact are to be assessed on a standard of reasonableness: Canada (Minister of Citizenship and Immigration) v Al-Showaiter, 2012 FC 12. In Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, the Supreme Court of Canada held that the adequacy of the reasons is not a standalone ground of review or a matter of procedural fairness, but rather, forms part of the reasonableness analysis.

Analysis

11     The applicant argues that since the Judge applied the physical presence test as articulated in Pourghasemi he should have examined the applicant's passport thoroughly to determine if the applicant had been physically present for the requisite number of days. However, the Judge noted that the applicant had an electronic Pakistan non-resident Card (NICOP), and therefore the lack of stamps in his passport would not necessarily establish that he had not travelled during the relevant period.

12     The applicant also submits that the Judge failed to ask him to submit his travel records from Canada Border Services Agency; however, the applicant has presented no authority that suggests the Judge is obligated to make this request. Such an obligation appears contrary to the onus on the applicant to establish he has met all the requirements for citizenship as stated in Maharatnam v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 405 (TD), para 5.

13     Although the Judge's notes indicate that the applicant holds a Pakistani passport no mention of it is made in the decision, other than:

·       You are a Citizen of the [sic] Pakistan and you also have the Pakistani electronic non-Resident Card, NICOP where the entry-exit to Pakistan can be recorded instead of stamps on the passport. I also understand that you own or owned properties in Pakistan. 

14     It is axiomatic that the onus rests on the applicant to establish on a balance of probabilities that he or she meets the residency requirements for citizenship. The thrust of the applicant's argument is that the Judge, having given the applicant a further opportunity to produce documents, was obligated to advise the applicant of his specific concerns as to the evidence of residency presented by the applicant. I do not agree. In essence, the applicant seeks to shift the evidentiary burden back to the Judge, whereas it rest squarely with the applicant.

15     The applicant further argues that the Judge failed to examine the applicant's passport. It is noteworthy that there is no copy of the passport in the record and the applicant made no effort to include his passport in the record. The only reasonable inference to be drawn from the fact that the passport was not included was that, given the applicant's use of the electronic NICOP is that it was not stamped and thus of no probative value. This was a conclusion reasonably open to the Judge.

16     The applicant contends that the passport was critical evidence which ought to have been included in the record. As noted, I reject this argument as it was open to the applicant to provide copies of the evidence said to be missing and of significant probative value. Secondly, the reason why there is no analysis of the passport is clear on the face of the record.

17     The balance of the applicant's submissions are that the Judge failed to properly consider the evidence presented and that he failed to give adequate reasons for his conclusions. Most of these arguments relate to the applicant's alleged work in Canada. The applicant argues that the Judge speculated that there were concerns about the source of the applicant's income and whether he was working in Canada during the relevant period. The applicant claims he presented evidence on these points that was unreasonably ignored, and also that the Judge relied on irrelevant evidence.

18     Contrary to the applicant's submissions, the Judge did not express concerns about the applicant's work history without justification. The Judge noted that the applicant's reported income did not correspond with the amounts in his bank accounts, nor with the amount necessary to support a family of five with multiple children enrolled in post-secondary education. Furthermore, the Judge's notes from his interview of the applicant reveal that the applicant acknowledged that all his business was conducted in the Middle East. Based on this evidence alone the Judge reasonably concluded that the applicant had failed to establish he was living and working in Canada for a sufficient number of days during the relevant period.

19     The applicant asserts it was erroneous for the Judge to consider the applicant's purchase of rental properties, since these purchases occurred after the relevant period. However, the Judge's comments about these properties, when read in context, did not give rise to an error. The Judge referred to the purchase of the rental properties in response to the applicant's claim that he was supporting his family in part through savings he brought with him to Canada:

·       You mentioned that you had brought some money from overseas. You maintain a US dollar account in Canada. However, during the hearing you had also mentioned that you had bought three properties in Canada and they were rented out. Looking at the information you provided, it looks like these overseas funds were used to purchase these properties... 

20     Thus, this part of the analysis relates to the finding that the applicant's reported income from work in Canada was insufficient to support his family. The Judge found that the applicant also could not have been supporting his family with the savings brought from overseas because those funds were used to purchase three properties. Thus, these purchases were relevant because they undermined the applicant's evidence about how he was supporting his family during the relevant period.

21     I find that the Judge's decision was reasonable and, furthermore, that his reasons amply justify his conclusions. The appeal is therefore dismissed.

JUDGMENT

THIS COURT'S JUDGMENT is that the appeal is hereby dismissed. Costs to the respondent in the amount of $250.00.

COSTS AWARDED AGAINST WHITE SOUTH AFRICAN IN POLITICIZED IMMIGRATION CASE

The Federal Court of Appeal awarded costs against the White South African who successfully argued at the IRB that he suffered discrimination based on race. The Federal Court Trial Division reversed the decision, the Federal Court of Appeal confirmed. It is very unusual for the court to award costs in immigration cases, but read the last paragraph, from the language of the decision it seems that the court was unhappy with counsel's conduct of the proceedings.

Canada (Minister of Citizenship and Immigration) v. Huntley
Between

Brandon Carl Huntley, Appellant, and

The Minister of Citizenship and Immigration, Respondent

[2011] F.C.J. No. 1382

2011 FCA 273
Docket A-482-10
Federal Court of Appeal

Toronto, Ontario
Sexton and Evans Stratas JJ.A.
Heard: October 3, 2011.

Oral judgment: October 3, 2011.

(13 paras.)

Appeal from a judgment of the Federal Court dated November 24, 2010, Docket No. IMM-4423-09, [2010] F.C.J. No. 1453.
________________________________________
The judgment of the Court was delivered by

1 EVANS J.A. (orally):-- Brandon Carl Huntley, a white citizen of South Africa, was found by the Refugee Protection Division of the Immigration and Refugee Board (Board) to be a refugee. It held that Mr Huntley had a well-founded fear of persecution on the ground of his race. The decision received considerable publicity and was criticised as racist by the Government of South Africa.

2 The Minister of Citizenship and Immigration (Minister) made an application for judicial review to the Federal Court to set aside the Board's decision. The matter came before Justice Russell (Judge), who held that the Board's decision was unreasonable in light of the evidence before it. Consequently, he granted the application and remitted the matter to the Board for re-determination in accordance with his reasons, which are published at 2010 FC 1175.

3 Mr Huntley also argued that the proceeding constituted an abuse of process because the Minister had brought the application for judicial review in response to diplomatic pressure from the South African Government, and that for the Court to grant the Minister's application would create an apprehension that it was biased and lacked independence. The Judge rejected this argument also, having found that there was no evidence that the Minister had made the application for judicial review for a reason other than that he thought that the Board's decision was wrong.

4 Paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), provides that no appeal lies to this Court from a decision of the Federal Court in matters governed by IRPA, unless the judge who heard the application for judicial review certifies that a serious question of general importance is involved and states the question.

5 In the present case, the Judge refused to certify questions proposed by counsel concerning political interference with IRPA proceedings and the allegations of perceived bias and lack of independence. He held that the questions proposed were hypothetical since he had concluded that there was no factual basis for their premise, namely that the Minister had brought an application for judicial review as a result of diplomatic pressure.

6 Undeterred, counsel for Mr Huntley has appealed to this Court, arguing that paragraph 74(d) has been held not to oust the general right of appeal from the Federal Court pursuant to section 27 of the Federal Courts Act, R.S.C. 1985, c. F-7, when the ground of appeal is that the Applications Judge was biased, or wrongfully assumed or declined jurisdiction.

7 We agree that, despite the apparently plain language of paragraph 74(d), Parliament cannot have intended to immunize alleged errors from appellate scrutiny which, if not subject to review, would undermine the rule of law and public confidence in the due administration of justice. However, in our view, the errors that the Judge is alleged to have committed in this case do not fall within this narrow category.

8 The principal so-called "jurisdictional" error invoked by counsel for Mr Huntley is that the Judge did not apply the reasonableness standard of review to the Board's findings of fact. Instead, counsel says, he substituted his own view of the evidence for that of the Board and made de novo findings of fact. Even if the Judge erred as alleged, failing to apply the appropriate standard of review is a run-of-the-mill error of law, and not a usurpation of jurisdiction falling outside paragraph 74(d).

9 Counsel also argues that Mr Huntley's appeal should be heard because he alleges abuse of process by the Minister. However, the Judge found that there was no evidentiary basis for this allegation, and hence refused to certify the questions of law proposed by counsel because they were hypothetical.

10 Even if the abuse of process alleged here could be the subject of an appeal in the absence of a certified question, we are not persuaded that the Judge made any reversible error in rejecting the allegation as unsupported by the evidence. It follows that counsel's related allegations of apprehended bias and lack of independence on the part of the Judge must also fail.

11 In the alternative, counsel submits that paragraph 74(d) violates section 7 of the Canadian Charter of Rights and Freedoms. We do not agree. This issue has been settled by Huynh v. Minister of Citizenship and Immigration, [1996] 2 F.C. 976 (C.A.).

12 Not are we satisfied that, on the facts of this case, Mr Huntley has established that he cannot get a fair hearing when the matter is remitted to the Board.

13 For these reasons the appeal will be dismissed. The totally unmeritorious nature of this appeal constitutes "special reasons" within the meaning of rule 22 of the Federal Courts Immigration Rules, SOR/93-22, and costs of the appeal will be awarded to the Minister.

EVANS J.A.