Thursday, July 24, 2014


It is rare to see a case of adoption of an adult. The Federal Court upheld the denial of citizenship in the case below.

Dubkov v. Canada (Minister of Citizenship and Immigration)

Luis Antonio Alvarado Dubkov, Applicant, and
Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 710
2014 FC 679

Docket: IMM-4026-13

 Federal Court
Toronto, Ontario

St-Louis J.

Heard: May 22, 2014.
Judgment: July 14, 2014.
(46 paras.)

1     Mr. Luis Antonio Alvarado Dubkov is a citizen of Guatemala. In June 2009, he arrived in Canada as a temporary resident to live with his maternal uncle, Mr. Chavez, and his family, all Canadian citizens. In Guatemala, Mr. Dubkov had lived with his mother and relatives until she passed away in January 2009. He had never lived with his father, and remained in the care of maternal relatives while in Guatemala after his mother passed away.
2     In August 2011, having just reached adulthood, Mr. Dubkov was adopted by the Chavezes who then became his adoptive parents.
3     In September 2011, Mr. Dubkov applied for Canadian citizenship as the adult adoptee of Canadian citizens. For his application to succeed, he had to establish both that there existed a genuine parent child relationship between him and the Chavezes before he reached the age of eighteen and at the time of the adoption, and that the adoption was not entered into primarily to gain a citizenship status or privilege.
4     The Citizenship Officer refused the application, unsatisfied that the evidence provided by Mr. Dubkov and his adoptive parents established the existence of a genuine parent-child relationship at the appropriate time, and unsatisfied that the adoption was primarily entered into for reasons other than gaining a citizenship status or privilege.
5     Mr. Dubkov filed for judicial review asking this Court to set aside the Officer's decision. He argues that the relationship between him and the Chavezes met the requirements and that the Officer did not consider the facts and the evidence and thus reached unreasonable conclusions. The respondent argues that the decision is reasonable, that the Officer found the evidence insufficient, and points out that the Chavezes provided no affidavit to support Mr. Dubkov's position before this Court.
6     The questions raised in this case pertain to the evaluation of the facts and evidence by the Officer and I concur with the parties that the applicable standard of review is that of reasonableness. In that context, considerable deference must be accorded to the Officer's decision and the Court will grant relief if it finds the decision was made in a perverse or capricious manner or without regard to the material before her. The decision will be reasonable if it falls within the possible outcomes given the facts and the law and provides sufficient transparency, intelligibility and justification (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
7     The Court finds that the Officer's decision is reasonable for the reasons set out below.
8     At the heart of Mr. Dubkov's case is the possibility for the adult adoptee of Canadian citizens to apply for Canadian citizenship. Section 5.1(2) of the Citizenship Act, RSC 1985, c C-29 outlines the requirements an applicant must meet in order to succeed, two of which are relevant in this case, namely:

·        1. 
There must be a genuine relationship of parent and child between the person and the adoptive parent before the person attained the age of eighteen years and at the time of the adoption; and 

·        2. 
The adoption must not have been entered into primarily for the purpose of acquiring a status or privilege in relation to immigration or citizenship. 
9     In turn, the Citizenship Regulations, SOR/93-246 outline the factors to consider in determining if these requirements have been met. They include the examination of whether or not the pre-existing legal parent-child relationship was permanently severed by the adoption.
10     These provisions are reproduced in the Annex to these Reasons.
11     This judicial review raises the three following questions:

·        (1) 
Did the Officer err in finding that Mr. Dubkov failed to establish the existence of a genuine parent-child relationship with the Chavezes before the age of eighteen and at the time of adoption? 

·        (2) 
Did the Officer err in finding that Mr. Dubkov failed to satisfy her that the applicant's adoption was not entered into primarily for a citizenship or immigration status or privilege? 

·        (3) 
Did the Officer fail to consider evidence presented by the Chavezes or provide adequate reasons? 

·        Question 1: Did the Officer err in finding that Mr. Dubkov failed to establish the existence of a genuine parent-child relationship with the Chavezes before the age of eighteen and at the time of adoption?

·        (a) 
Mr. Dubkov's submissions 
12     Mr. Dubkov argues that the Officer's finding that he had a parent-child relationship with his birth father is unreasonable. He rather submits that his relationship with his birth father was not "typical" as the Officer characterized it, but on the contrary, that his birth father was largely absent and contented to play merely a peripheral role in his life, even after the death of his mother. Further, the fact that Mr. Dubkov's birth father had a minor ongoing relationship with him does not mean that the pre-existing legal parent-child relationship was not permanently severed by the adoption (Adejumo v Canada (Minister of Citizenship and Immigration), 2011 FC 1485 at paras 12-14, citing the Citizenship and Immigration Canada [CIC] Operation Bulletin 183).
13     Mr. Dubkov argues that the Officer's reliance on the fact that he did not call the Chavezes "mom" and "dad" was unreasonable. He submits that the evidence had been that he did not feel comfortable calling them "mom" and "dad" in Spanish, as he had grown up referring to them as "aunt"and "uncle", but he did call them "mom" and "dad" when speaking in English.
14     Mr. Dubkov submits that the Court has laid out non-exhaustive factors to be considered in assessing the genuineness of a parent-child relationship in Buenavista v Canada (Minister of Citizenship and Immigration), 2008 FC 609 at para 8 [Buenavista] and that the Officer failed to consider these factors. He argues that an analysis of these factors point toward a genuine parent-child relationship between himself and the Chavezes, and that without considering these factors, the Officer's decision lacked transparency, intelligibility and justification (citing Davis v Canada (Minister of Citizenship and Immigration), 2013 FC 1243 at paras 9-11 [Davis]).

·        (b) 
Respondent's submissions 
15     The respondent argues that the Officer's findings are reasonable. Mr. Dubkov's birth father did have an ongoing relationship with him, and it was open to the Officer to conclude that it was a parent-child relationship. Even non-custodial parents can have parent-child relationships with their children, and there is no one "typical" parent-child relationship.
16     Mr. Dubkov's contention that the Officer misunderstood his evidence regarding his being uncomfortable calling the Chavezes "mom" and "dad" only in Spanish is just that -- a contention, without support in the evidence.
17     Further, the Buenavista factors are merely non-exhaustive factors. The key question is whether the decision is reasonable, not whether the Officer went through a list of factors. The Court should not rely on Davis because it is currently before the Federal Court of Appeal.

·        (c) 
18     The Officer's determination that the Chavezes did not have a genuine parent-child relationship with the applicant before age eighteen and at the time of the adoption is a finding of fact. The Court must afford significant defence to the Officer's factual findings, particularly where, as here, the determination falls within the core of the decision-maker's expertise. As such, Mr. Dubkov must show that the Officer's determination was made "in a perverse or capricious manner or without regard to the material before it" (Federal Courts Act, RSC 1985, c F-7, s 18.1(4)(d)).
19     The onus is on Mr. Dubkov to provide evidence that a genuine parent-child relationship existed at the relevant time, that is, to show that the Chavezes had, not only legally, but practically, taken on the role of parents in the applicant's life (Rai v Canada (Minister of Citizenship and Immigration), 2014 FC 77 at para 21).
20     The Officer's reasons for finding that there was no such relationship are far from perfect. Her first reason is that she found that Mr. Dubkov had a typical parent-child relationship with his birth father. While I would not necessarily characterize the relationship between Mr. Dubkov and his birth father as a "typical" parent-child relationship, or at least not as an ideal one, the relevant question is not whether the reviewing court would have come to a different conclusion, but rather whether, in light of the record, the finding was unreasonable.
21     However, I need not address the reasonableness of this first finding because the Officer provides a second reason for finding there was no such genuine parent-child relationship: she found that Mr. Dubkov's relationship with the Chavezes was akin to a typical uncle/aunt-nephew relationship. While she does not provide a fulsome analysis to support this finding, the record reveals that the Officer's determination on this point was reasonable.
22     First, there is some inconsistency in the applicant's evidence with respect to the nature of the relationship between the Chavezes and Mr. Dubkov before he moved to Canada. He testified that after the death of his mother, the Chavezes kept in touch with him through phone and email, but it was infrequent, irregular contact. In contrast, the Chavezes testified that there was constant, regular contact. Mr. Dubkov and the Chavezes have provided minimal evidence substantiating their pre-Canada relationship. The Chavezes testified that they saw Mr. Dubkov three to four times during various visits to Guatemala, but it appears that only one of these visits took place after the death of his birth mother. The Chavezes also testified that they provided financial assistance to Mr. Dubkov after the death of his birth mother, but there is no documentary evidence to support this. In other words, the record does not clearly support the conclusion that prior his move to Canada; the Chavezes played a parental role in Mr. Dubkov's life.
23     Second, even for the period after he moved to Canada in 2009, Mr. Dubkov has not provided significant documentary evidence to substantiate that the Chavezes' care for him rose to the level of a genuine parent-child relationship. While it is evident from the interview notes that the Chavezes care for Mr. Dubkov very much and have apparently provided for and supported him throughout his time in Canada (and the Officer acknowledges as much in her decision), the applicant's burden is to demonstrate not merely that his adoptive parents cared for and supported him, but rather that there was a genuine parent-child relationship. Given the dearth of documentary evidence to that effect, the Officer's conclusion that the Chavezes' relationship with Mr. Dubkov was akin to that of an uncle and aunt rather than parents is not perverse or capricious or unfounded on the basis of the record.
24     The fact that the Officer did not engage in a thorough analysis of the record or meticulously break down her reasoning does not render her decision unreasonable. The Supreme Court has held that in assessing the reasonableness of a decision, "the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes" (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 14 [Newfoundland Nurses]). While the Court "should not substitute [its] own reasons", it may, if necessary, "look to the record for the purpose of assessing the reasonableness of the outcome" (Newfoundland Nursesat para 15). Indeed, even where the decision-maker's reasons "do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them" (Newfoundland Nurses at para 12). These principles have been followed and applied in a number of cases (see e.g. Andrade v Canada (Minister of Citizenship and Immigration), 2012 FC 1490 at paras 7-13 [Andrade]; Persaudv Canada (Minister of Citizenship and Immigration), 2012 FC 274 at para 15; Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319 at paras 30-31).
25     Therefore, the Officer was not required to provide a detailed account of the evidence or explain her entire thought process in her reasons.
26     Mr. Dubkov argues that the Officer should have gone through the factors articulated in Buenavista and that her failure to do so was unreasonable. I disagree. Just because the Officer did not expressly work through that list does not mean she failed to consider the substance of the relevant factors listed therein.
27     Since the record supports the Officer's determination, it was not made in a perverse or capricious manner or without regard to the material before her. The Officer's finding that there was not a genuine parent-child relationship is therefore reasonable and should not be disturbed.

·        Question 2: Did the Officer err in finding that Mr. Dubkov failed to satisfy her that his adoption was not entered into primarily for a citizenship or immigration status or privilege?

·        (a) 
Mr. Dubkov's submissions 
28     The Officer found that the reasons Mr. Dubkov and the Chavezes entered into the adoption were, "besides for the purpose of belonging to a family, a better education, economic gains and a better quality of life in Canada". Mr. Dubkov argues that it was unreasonable for the Officer to find that these ancillary benefits overrode the situation surrounding his adoption, which point to a genuine parent-child relationship. He submits that nothing about the adoption suggests it was a sham or done in bad faith.
29     The Officer also failed to consider CIC's operational manual Citizenship Policy 14 -- Adoptions [the CP14 Guidance Document], which provides guidance on assessing whether adoptions are genuine. Mr. Dubkov submits that the majority of the factors listed therein indicate that his adoption was not entered into primarily for a citizenship benefit purpose. This Court has previously set aside a decision for failing to take into account the CP14 Guidance Document (Tran v Canada (Minister of Citizenship and Immigration), 2012 FC 201).

·        (b) 
Respondent's submissions 
30     The respondent submits that the Officer's finding was reasonable because, although the Officer recognized that part of the reason for adoption was to provide Mr. Dubkov with a sense of belonging, Mr. Dubkov and the Chavezes also stated it was to obtain the benefits of citizenship, such as a better education, economic gains, and a better quality of life.
31     The respondent also notes that when the adoption occurred, Mr. Dubkov was already an adult, and so the adoption had very limited legal significance, and also had no effect on the personal relationship between the applicant and the Chavezes.
32     The respondent further submits that Mr. Dubkov, who bears the burden of proof, needed to show that he would have proceeded with the adoption even if there was no chance of obtaining a citizenship benefit. He has not done so.

·        (c) 
33     The Officer's determination that the adoption was entered into primarily for the purpose of acquiring a citizenship privilege is also a factual finding to be afforded significant deference. Her reasoning in support of this finding was that, in addition to the purpose of belonging to a family, Mr. Dubkov and the Chavezes indicated that the adoption took place so that Mr. Dubkov could have "a better education, economic gains and a better quality of life in Canada".
34     This sparse reasoning leaves much to be desired. However, a review of the record supports the reasonableness of the Officer's finding, for at least two reasons.
35     First, Mr. Dubkov has provided no documentary evidence showing any urgency or motivation to complete the adoption process before Mr. Dubkov turned eighteen, even though it appears he had no status in Canada for some time. While Mr. Dubkov attached a copy of an "Affidavit of Adoption Applicants" form, sworn by the Chavezes on August 5, 2009, there is no indication that this is the form which initiated the adoption that was ultimately granted after the applicant turned eighteen. There is also no evidence that the Chavezes or Mr. Dubkov were pressuring or urging his birth father to sign the consent form, which he ultimately did on June 12, 2011. During the interview, the Chavezes testified that they did not adopt Mr. Dubkov right away because they wanted to give him the chance to see if he liked living with their family in Canada. The record therefore does not show that Mr. Dubkov and the Chavezes were particularly eager to complete the adoption before he turned eighteen, after which adoption becomes a much simpler matter.
36     Second, the record suggests that the costs of Mr. Dubkov's post-secondary education may have been a strong motivating factor for obtaining citizenship. Mr. Dubkov graduated high school in 2012 with good marks, but was accepted to university for the 2013-14 academic year, rather than the 2012-13 year. There is no indication as to why the applicant did not proceed to university in the year that he graduated. The Court asked the applicant's counsel at the hearing whether Mr. Dubkov was currently attending university, counsel was unable to provide an answer. Further, at the interview, the Chavezes stated that they were not prepared to pay for Mr. Dubkov to go to university as a foreign student because foreign student fees are much higher as compared to those for permanent residents or citizens.
37     As discussed above, the Officer was not required to address every point in the evidence in her reasons. As her determination finds support in the record, it cannot be said to have been made in a perverse or capricious manner, or without regard to the record. It is therefore reasonable.
38     I wish to briefly address Mr. Dubkov's argument that the decision was unreasonable because the Officer failed to follow the CP14 Guidance Document. A similar argument was made before my colleague, Justice Phelan, in Kaur v Canada (Minister of Citizenship and Immigration), 2013 FC 1177. I find his holding at para 16 of that decision to be apposite in this case as well:

·        I see no legal infirmity in the decision nor do I accept that the Officer ignored the departmental Guidelines. Not only are these Guidelines simply that, guidelines where not every factor must be addressed, but the Officer fully addressed all the relevant points in those Guidelines. 
39     For these reasons, the Officer's determination that Mr. Dubkov had failed to show that his adoption did not take place primarily for the purpose of obtaining a status or privilege relating to immigration or citizenship was reasonable, and should not be disturbed.

·        Question 3: Did the Officer fail to consider evidence presented by the Chavezes or provide adequate reasons?

·        (a) 
Mr. Dubkov's submissions 
40     Mr. Dubkov submits that the Officer failed to consider the evidence of the Chavezes in determining the genuineness of the parent-child relationship. Further, the Officer repeatedly refers to the Chavezes as his aunt and uncle, when they are in fact his adoptive parents, suggesting that the Officer was set on regarding them as aunt and uncle, not as his parents.
41     Mr. Dubkov argues that the lack of reasons for the Officer's apparent rejection of the Chavezes evidence amounts to a reviewable error.

·        (b) 
Respondent's submissions 
42     The respondent notes that the Chavezes have not submitted any affidavit evidence on this application. It is therefore disingenuous for Mr. Dubkov to contest the Officer's factual findings or her assessment of the evidence.
43     Further, the Supreme Court has clarified that adequacy of reasons is not a stand-alone procedural ground for quashing a decision. Rather, the adequacy of the reasons must be analyzed in conjunction with the reasonableness of the outcome (Newfoundland Nurses at paras 20-22). As the decision as a whole is reasonable, the attack the adequacy of the reasons cannot succeed.

·        (c) 
44     As discussed above, the adequacy of reasons is not a stand-alone ground for overturning a decision, and the Officer was not required to expressly address every piece of evidence before her. The decision-maker is presumed to have read all the evidence before her (Andrade at para 11; Guevara v Canada (Minister of Citizenship and Immigration), 2011 FC 242 at para 41; Ayala v Canada (Minister of Citizenship and Immigration), 2007 FC 690 at para 23). Just because the Officer did not specifically mention the Chavezes' testimony does not mean she did not consider it and weigh it appropriately. Mr. Dubkov provided minimal documentary evidence to corroborate the statements of the Chavezes, and, as the respondent notes, the Chavezes themselves have not filed an affidavit in this application. There is therefore no indication that the Officer missed a crucial piece of documentation that ran contrary to her conclusions. I therefore reject the applicant's arguments on this point.
45     Mr. Dubkov's complaint about the Officer's use of "aunt and uncle" when referring to the Chavezes appears to be a thinly veiled allegation of bias. There is no merit to this allegation.
46     For the above reasons, Mr. Dubkov's application for judicial review is dismissed.

·        1. 
This application for judicial review is dismissed. 


Monday, July 21, 2014


Canadian HR Reporter
Jul 14, 2014

Foreign workers now harder to hire

Employers facing increased costs, red tape and enforcement
By Sarah Dobson

Major changes to Canada’s Temporary Foreign Worker Program (TFWP) are being received with mixed reviews but will definitely have an impact on those employers that make use of the government program.
The reforms are meant to ensure the TFWP is only used as intended — as a last and limited resort to fill acute labour shortages on a temporary basis when qualified Canadians are not available — according to the government. That means limiting access to the program, tightening the labour market assessment and implementing stronger enforcement with tougher penalties so businesses will have to make greater efforts to recruit and train Canadians for available jobs, including increasing wages.
It’s a monstrosity, according to Sergio Karas, principal and lawyer at Karas Immigration Law.
“There is absolutely no dispute by anyone that some elements of the program were being abused,” he said. “But that doesn’t mean that you can use a sledgehammer in order to deal with problems that require a scalpel.”
The changes will undermine Canadian companies’ competitiveness because employers are going to quit using the program altogether and look for other ways to bring in workers, such as international treaties, said Toronto-based Karas, adding the government is being disingenuous in not mentioning the impact of other programs such as open work permits.
“Instead of having a comprehensive approach that makes sense, what (governments) do is they devise these ad hoc measures that respond to political pressures.”
The reforms are not a move in the right direction, according to Richard Truscott, director of provincial affairs in Alberta at the Canadian Federation of Independent Business (CFIB).
“Had these changes taken place in the context of broader reforms to our immigration system, to make sure that it aligns more closely with the needs of employers, then it might be a different story. But since they’ve shut off access to temporary foreign workers for employers, especially in places like Alberta, it’s going to do serious damage to our economy.”
It seems like there is a real bias in that we only want engineers and scientists and highly skilled tradespeople to come to the country on a permanent basis, he said.
“(The CFIB wants) to see things like more pathways to permanent residency for temporary foreign workers at all skill levels.”
The TFWP has been a critical lifeline for a lot of businesses, said Truscott.
“Now that they’ve shut that off, it’s certainly going to cause major disruption within the economy and prevent employers from having access to people that they have a verified need for. So it’s pretty much bad news all around, certainly for smaller firms.”
But the changes, on the whole, are not that bad, according to Howard Greenberg, partner at KPMG Law in Toronto.
“The ministers of employment and skills development and citizenship and immigration could have imposed draconian measures to limit or suspend the Temporary Foreign Worker Program. Given the possibility, the measures taken were, for the most part, balanced and reasonable in the circumstances,” he said.
“Employers must take a balanced view of a program which has been under high scrutiny and which requires additional controls in order to gain the confidence of Canadians.”
New programs created
As part of the overhaul, the TFWP is being reorganized and new International Mobility Programs (IMPs) are being created. The TFWP will now refer to those streams under which foreign workers enter Canada at the request of employers following approval through a new Labour Market Impact Assessment (LMIA). The IMPs will incorporate those streams in which foreign nationals are not subject to an LMIA, and whose primary objective is to advance Canada’s broad economic and cultural national interest, rather than filling particular jobs, said the government.
Under an LMIA, employers must provide information on the number of Canadians applicants, interviews and rejections. The LMIA fee is also increasing from $275 to $1,000 for every temporary foreign worker position requested by an employer.
The fees appear to be going up sevenfold, said Truscott, as applications have to be made more often because timeframes are shortened. So the costs are going to be a lot higher and require a large volume of additional paperwork.
“They’ve taken a bad program that was costly and bureaucratic and slow and made it even worse,” he said. “The program has been tightened considerably, it’s been made much more expensive and more difficult to use.”
The good news is the high-end foreign labour force is going to enjoy 10-day processing, said Greenberg.
“It’s not the old ALMO (Accelerated Labour Market Opinion) but it certainly is business-friendly,” he said. “The bad news is that there has been a substantial increase in fees. However, in the context of other countries, it is a fraction of what is charged by government agencies.”
However, offside employers could face administrative fines of up to $100,000, said Greenberg.
Caps, shorter stays
Employers with 10 or more employees applying for an LMIA will be subject to a cap of 10 per cent on the proportion of the workforce that can consist of low-wage temporary foreign workers. Those rules will be transitioned in for employers already over the cap, said the government.
LMIAs for low-wage temporary foreign workers will be reduced from a two-year standard duration to one year. And applications for the lowest-wage, lowest-skill, entry-level occupations in the food services, accommodation and retail trade sectors will be barred from the TFWP in areas of high unemployment (six per cent or higher).
Employers seeking to hire high-wage temporary foreign workers (with limited exceptions) must submit transition plans to demonstrate how they will increase efforts to hire Canadians.
The government will also publicly post data on the number of approved positions for temporary foreign workers on a quarterly basis, and post the names of corporations that receive permission to hire these workers through LMIAs.
Employers are going to have to make their case in the arena of public opinion, said Greenberg.
“The scrutiny will not be merely a matter of compliance. That said, there are many projects undertaken by foreign workers that would have the confidence and approval of Canadians if appropriately explained by Canadian employers — the challenge is going to be one of communication,” he said.
“Employers should not be concerned about compliance if they put the appropriate checks and balances in place, innovate their processing procedures and create specific paths of accountability within their businesses.”
Improved enforcement, data
In addition, the number and scope of inspections will increase so one in four businesses employing temporary foreign workers are inspected each year.
“That’s something our members believe is a good step because a few bad apples are certainly causing major problems for a long list of employers who have a verified needs and are following all the rules,” said Truscott.
The ability to publicly blacklist employers that have been suspended and are under investigation will be expanded, as well as those that have had an LMIA revoked and are banned from using the program.
That’s a bit of a double-edged sword, said Truscott.
“Transparency is typically a good thing but we also don’t want a big target on the backs of employers who are using the program so that unions can organize boycotts and protests — we’ve seen some of that in the last couple of months, so that certainly worries us.”
The government also announced funding for two new surveys by Statistics Canada. A quarterly job vacancy survey will be based on a sample of 100,000 employers, not the current 15,000, and provide data by local areas, occupations and skill levels. A national wage survey will also double the sample size from 56,000 households to 100,000 employers, and data will be available by region instead of only at the provincial level.
“Everybody, without exception, has been skeptical of the use of the surveys — they are too blunt and out of date. If the program is about filling labour market shortages as a last resort, then clearly data is the key,” said Greenberg.
Better data is appreciated, according to Truscott.
“It’s always good news to hear governments are looking for better information with which to make public policy, and perhaps that’s one critique here — they’re making these decisions in the absence of good information.”

- See more at:

Friday, July 11, 2014


See National Post article below. I have known Reg Williams well for many years, as I used to appear to argue cases against him when he represented CIC in hearings and adjudications, and later when he used to be part of panels at the Ontario Bar Association representing CBSA and providing information. I am not surprised at the allegations, although I think that the problem is much more complex than described, and that the lower deportation rates may have to do with the cumbersome and repetitive nature of the process that is poorly set up and inefficiently designed.

July 10, 2014

Canada's immigration enforcement system suffers from 'orchestrated mismanagement,' whistleblower claims

By Adrian Humphreys

The 23-page letter claims CBSA's immigration enforcement is 'unraveling' just as CBSA bosses are being considered for substantial bonus payments

A former Canada Border Services Agency manager is blowing the whistle on the alleged "orchestrated mismanagement" of Canada's immigration enforcement system, revealing a precipitous drop in the number of illegal immigrants deported at the same time as agency overspending and escalating detention costs.
"Simply put, more money was spent to produce less," Reg Williams, the former director of CBSA's Toronto enforcement office, says in a whistleblowing letter to the Privy Council that was obtained by the National Post.
The 23-page letter claims CBSA's immigration enforcement is "unraveling" just as CBSA bosses are being considered for substantial bonus payments for their performance.
"As a retired public servant, taxpayer and citizen, I am deeply concerned ... that the downward trend in productivity, if not addressed, will threaten community safety and security," he writes in the letter, dated June 26.
"Taxpayers deserve to know why the immigration enforcement program has produced significantly less while spending significantly more."
The CBSA president, Luc Portelance, who has an annual salary of between $257,700 and $323,100, stands to add $85,000 to $125,000 in performance pay under the federal public service's executive pay system, the letter says. CBSA's vice-president of operations, Martin Bolduc, whose annual salary is between $178,800 and $200,300, is in line for a bonus of between $46,500 to $52,000, it says.
National Post Graphics
Meanwhile, the removal of illegal immigrants from Canada has dropped about 26% nationally in the fiscal year ending March 31, compared to last year, and dropped about 34% in the Toronto region, an office previously boasting double-digit increases in removals each year since 2008, the letter says.
The letter also blasts overspending in the Toronto office budget, saying there was an almost 30% increase in the cost of detaining people who are inadmissible to Canada.
Such "orchestrated mismanagement" should not be rewarded, Mr. Williams says in the letter, addressed to Wayne Wouters, Clerk of the Privy Council. (The PCO oversees management of appointments and human resources for senior positions in the federal public service.)
"It is not a practice of the Canada Border Services Agency to comment on allegations made by a third party," said Vanessa Barrasa, spokeswoman for the CBSA, when asked about Mr. Williams' analysis.
"What the CBSA can say is that we have deported more than 100,000 illegal immigrants since 2006."
Mr. Williams was the director of the agency's Greater Toronto Enforcement Centre (GTEC), the country's largest immigration enforcement office, from 1998 until he was pushed out of the post in 2012 after an attempted removal of a high-profile illegal immigrant - a man known as The Man With No Name because he has no identification - went poorly.
Removed from his position at GTEC, Mr. Williams then asked to take early retirement. He was notified of his reassignment, effective the next day, on April 4, 2012. There was much mystery and shock after his removal.
Mr. Williams has an outstanding grievance against CBSA before the Public Service Labour Relations Board.
"While it may be easy to dismiss my concerns as those coming possibly from a disgruntled former executive, I can assure you that is not the case," he says in his letter.
"My concern and dismay is based on objective facts which I urge you to verify. I see it as my responsibility to alert Canadians on the adverse direction the enforcement program has taken."
Mr. Williams says he believes his abrupt removal without a transition period or plan undermined GTEC's performance after his departure.
He asks the Privy Council to evaluate the performance of CBSA senior managers and the effectiveness of CBSA's operations given the poor results before deciding on the performance bonus payments.
The removal of immigrants who came to Canada but are ineligible to remain here is one of the most important measures of CBSA's success, Mr. Williams says.
And yet, in the Toronto region, about 3,000 fewer deportations took place in the last fiscal year over the previous year, a drop of about 34%, he says. Nationally, there were about 5,000 fewer deportations, down about 26%. That follows year-after-year increases in deportations since the 2008-09 fiscal year, he says.
CBSA had projected removing 17,075 people nationally in the last fiscal year but only managed to remove 13,900 and is the first time in perhaps a decade CBSA's target was missed, the letter says.
Aaron Lynett / National Post
A request for CBSA to confirm these numbers was not responded to by deadline.
The reduced removals are not because of a lower caseload, Mr. Williams says in his letter.
"There are enough cases in the GTA inventory such that the organization can be fully engaged for two to three years without accepting a single new case," he says.
"The numbers don't lie and there is no escaping the reality that the safety and security of Canada has been compromised and this is a severe blow to the integrity of Canada's removals program.
"For every person not removed or delayed in removal, there is a real cost to the Canadian taxpayer in the form of an increased burden on social and medical services. This is over and above potential unknown threats these individual may pose in the community," he says.
At the same time as completing fewer removals, CBSA has been overspending, Mr. Williams claims.
CBSA in the Toronto region has overspent its detention budget by $2-million and $7-million in the two most recent fiscal years, he says. Also, the number of jail days - total number of days all immigration detainees spend behind bars in a year - is at "the highest levels in immigration history."
Spending in the Toronto region on immigration detention jumped from $25.46-million to $30.5-million this year from last. He says much of it, but nowhere near all, can be attributed to by an increase in the amount charged by the province for housing detainees in provincial jails and pay increases in security guard contracts.
The letter says the data Mr. Williams uses in his analysis is from his experience and memory and recent information received from "concerned parties." He cautions Mr. Wouters to be alert to CBSA bosses being more aggressive trying to stem information leaks than addressing these issues.
"When faced with criticism the usual reaction is to go on the offensive to launch a campaign to find the source of 'leaks' in information, all of which creates a chilling effect ... and further destroys staff morale," the letter says.
"Immediate action is required to reassure Canadians that community safety and security will not be compromised."
National Post

Thursday, July 10, 2014


A visa officer must disclose his concerns clearly and request reasonable information concerning an applicant's intent to reside in Canada. In hte case below, requiring specificity over and above that provided by the applicant was unreasonable.

Jin v. Canada (Minister of Citizenship and Immigration)

JIN, Liwen, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 633
2014 FC 612

Docket: IMM-6342-13

 Federal Court
Montréal, Quebec

Roy J.

Heard: May 21, 2014.
Judgment: June 25, 2014.
(15 paras.)

1     ROY J.:-- In this application for judicial review made pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,SC 2001, c 27 [IRPA], it is the decision of an Immigration Officer that is challenged.
2     The decision, dated May 22, 2013, denies an application for a permanent resident visa as a member of the Canadian Experience Class.
3     In the decision, which was transmitted by email, the Immigration Officer states that:

·        [Y]ou have not provided tangible evidence you are returning to Canada, i.e. copy of a purchased an [sic] airline ticket, offer/contract of employment in Toronto. In addition, there is no indication Yutong Wu is the proprietor of the condo, nor was a signed lease provided. Based on the above, I am not satisfied it is your intent to establish in Canada and in a province other than the province [sic] of Quebec. 
4     That letter of decision followed what has been called a "fairness letter" which was sent on February 20, 2013. Such a letter is for the purpose of indicating to applicants why their application will be denied if additional information or evidence is not provided. In the case at bar, the only indication of the concerns reads as follows:

·        Please provide written evidence that you intend to live in a different province than Quebec in order for me to take a final decision on your application. If you choose not to respond with additional information and/or documentation, or if your submission does not respond to these concerns, you [sic] application may be refused. 
5     Within the 30 days given in order to provide a response, the applicant, through a representative who was not her counsel in these proceedings, responded with an email on March 19, 2013. In that email, the Immigration Officer is advised that the applicant has left Canada and a copy of her passport showing her entry into China on June 21, 2012 is appended. The email also advises that the applicant is working in Shanghai since November 1, 2012. The third paragraph is particularly relevant. It reads:

·        Mrs. Jin plans to come back to Canada on September 1st, 2014. She will lease a condo in Toronto. Please refer to the attached rental confirmation. Mrs. Jin lived and studied in London, Ontario from September 2006 to October 2010. She intends to settle in Ontario because her second language is English and because of her relations in the province of Ontario. She feels it would be difficult to find a permanent job in Québec because she doesn't speak French. 
6     There is in fact a letter confirming her employment in Shanghai and a document, which is not dated, which seeks to provide evidence that a condominium owned by that person, Yutong Wu, will be leased to Ms Jin.
7     It is not disputed by the parties that the standard of review in the circumstances is the standard of reasonableness. The task at hand is therefore to determine whether the decision letter of May 22, 2013 meets the reasonableness standard. In my view, it does not.
8     The concern that was raised initially was to the effect that the applicant would in fact reside in the Province of Quebec. As indicated in that letter, "the Canadian experience class is prescribed as a class of persons who may become permanent residents on the basis of their experience in Canada and who intend to reside in a province other than the Province of Quebec." Thus, the applicant, through a representative, sought to alleviate the concern by providing evidence that she would indeed reside outside of the Province of Quebec. The applicant responded to the concern raised.
9     However, the decision letter switches gears in that the decision is based on the argument that "[Y]ou have not provided tangible evidence you are returning to Canada". The concern that was present that the applicant would reside in Quebec has magically become whether or not the applicant would be returning to Canada at all. One has to wonder why an applicant would go through the trouble of retaining a consultant and fill out the various forms and questionnaires that need to be completed if the person does not intend to return to Canada. What is more is that the further explanation of what might be missing appears to be inaccurate. The Immigration Officer declares that there is no indication that Yutong Wu is the proprietor of the condo. This is not so. On the basis of the evidence before the decision-maker, this gentleman is the owner of the condominium. There is no indication in the decision as to why the Immigration Officer would refute that information.
10     In my view, it is unreasonable to require, for instance, that an applicant would have to purchase an airline ticket, and incur a significant cost, for the sole purpose of satisfying an Immigration Officer that she intends to avail herself of the permanent residence visa she requested. It would be more reasonable to purchase such an expensive ticket after the Canadian authorities have confirmed that a visa will be delivered. Similarly, there is no indication why the letter from the owner of the condominium would not be sufficient and why a signed lease would be needed.
11     Accordingly, one is left with a refusal based on concerns that were not raised in the fairness letter and for reasons that appear on their face to be less than convincing. One has to consider that the exchange of information was taking place some six months before the applicant would make her way to Canada. Had the Immigration Officer had concerns about the employment situation once in Toronto, she could, and I suggest she should, have raised these with the applicant. Limiting her concerns to where the applicant will reside in the Province of Quebec sets up the applicant for failure if other concerns are present.
12     The respondent has alluded to the case law that finds that there is no need to enter into a discussion with applicants about their credibility or authenticity of information submitted in support of an applicant (Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 FCR 501).
13     With respect, such is not the case here. The respondent raised a very specific concern in the fairness letter: will the applicant reside in the Province of Quebec. That is the matter that is addressed squarely in the response. There is no further discussion of the credibility or authenticity of that information. Rather, a completely different issue, the return to Canada altogether, becomes the reason for the refusal. Black's Law Dictionary (West Group, 7th ed) defines "bait and switch" as "A sales practice whereby a merchant advertises a low-priced product to lure customers into the store only to induce them to buy a higher-priced product."Although most analogies are somewhat defective, this one illustrates the point in that the applicant is lured into thinking that the issue is one thing, to be told that it is something else of an even higher order.
14     I would not dispute that the concerns about the residency in the Province of Quebec of the applicant were legitimate. In her initial application, it was clear that following her studies in London, Ontario, she resided in the Province of Quebec and, indeed, held a job in the province. However, it was incumbent on the Immigration Officer to deal with those concerns on the basis of the information that was provided on March 19. They were deemed to address the concerns raised in the fairness letter and, in my estimation, it was not reasonable to deny the application for permanent residence on a completely different basis not even alluded to. If doubts about residency in Quebec deserved a fairness letter, doubts about a return to Canada were equally deserving of a fair warning.
15     As a result, the application for judicial review is granted, and this application for permanent residence as a member of the Canadian Experience Class has to be reassessed and determined anew by a different immigration officer. There is no question for certification.
THIS COURT'S JUDGMENT is that the application for judicial review is granted, and this application for permanent residence as a member of the Canadian Experience Class has to be reassessed and determined anew by a different immigration officer. There is no question for certification.

Friday, July 4, 2014


The Federal Court of Appeal has ruled that the consideration of criminal equivalence for the purposes of inadmissibility must take into account the punishment for the offence in Canada a the time of decision, not at the time of commission of the offence abroad.

Sanchez v. Canada (Minister of Citizenship and Immigration)

Noe Gama Sanchez, Appellant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 635
2014 FCA 157

Docket: A-315-13

 Federal Court of Appeal
Vancouver, British Columbia

Nadon, Stratas and Scott JJ.A.

Heard: June 10, 2014.
Oral judgment: June 10, 2014.
(10 paras.)
Immigration law -- Exclusion (Inadmissible persons) -- Grounds for inadmissibility -- Criminality -- Inadmissibility findings -- Judicial review -- Appeal by Sanchez from dismissal of application for judicial review dismissed -- Appellant was found inadmissible to Canada due to serious non-political criminality -- At issue was whether seriousness of crime should be assessed at time of commission, or at time of Refugee Protection Division's determination of exclusion given subsequent increase in likely sentence in Canada -- Court of Appeal answered certified question, stating where a change to penalty for Canadian equivalent offence occurred, assessment of seriousness should be undertaken when Refugee Protection Division considered issue of exclusion.

Statutes, Regulations and Rules Cited:
United Nations Convention Relating to the Status of Refugees, Article 1F(b)
Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 98

Appeal From:
Appeal from a judgment of the Federal Court (The Honourable Mr. Justice Russell) dated August 29, 2013, Docket No. IMM-11894-12.

The judgment of the Court was delivered by
1     STRATAS J.A. (orally):-- This is an appeal from the judgment of the Federal Court (per Justice Russell) dated August 29, 2013: 2013 FC 913. The Federal Court dismissed the appellant's application for judicial review from the Refugee Protection Division's decision dated October 30, 2012.
2     In its decision, the Refugee Protection Division found that the Applicant had committed a "serious non-political crime" outside Canada and, thus, was excluded from refugee protection pursuant to Article 1F(b) of the United Nations Convention Relating to the Status of Refugees and section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
3     The central issue before the Federal Court was when the seriousness of the crime under article 1F(b) of the Convention should be assessed. Should it be assessed at the time of the commission of the crime or at the time of the Refugee Protection Division's determination? The Federal Court concluded that the relevant time for assessment is the time of determination.
4     One factor to be assessed when considering the seriousness of the crime is to examine the penalty in Canada for an equivalent crime. In this case, at the time of the Division's determination, the penalty in Canada for the equivalent crime was much higher than it was at the time the appellant committed the crime abroad.
5     On this point, we substantially agree with the Federal Court's reasons and conclusion at paragraphs 59-62 of its reasons.
6     In assessing the seriousness of the crime, the Refugee Protection Division must consider all relevant considerations pertaining to the factors set out in Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4 F.C.R.164 at paragraph 44. In assessing the penalty for the equivalent crime under Canadian law, the Refugee Protection Division cannot close its eyes to the law that is on the books at the time of its determination.
7     The appellant submitted that this Court in Febles v. Canada (Minister of Citizenship and Immigration), 2012 FCA 324 at paragraph 52 held that the seriousness of the crime should be assessed at the time of commission. But in making that comment, this Court was responding to the submission that the offender's later rehabilitation could affect the assessment of the seriousness of the crime. This Court did not deal with the question before us, which is the relevance of a later change in the penalty for the equivalent crime in Canada.
8     The appellant accepts that if the Federal Court's decision on this point is correct, the decision of the Refugee Protection Division was reasonable.
9     Accordingly, despite the able submissions of counsel for the appellant, we will dismiss the appeal. We will answer the certified question as follows:

·        Question: When assessing the Canadian equivalent of a foreign offence in the context of exclusion under Article 1F(b) of the Convention Relating to the Status of Refugees and the Jayasekara factors, should the Refugee Protection Division Member assess the seriousness of the crime at issue at the time of commission of the crime or, if a change to the Canadian equivalent has occurred in the interim, at the time when the exclusion is being determined by the Refugee Protection Division? 

·        Answer: If a change to the penalty for the Canadian equivalent offence has occurred, the assessment should be done at the time when the Refugee Protection Division is determining the issue of the section 1F(b) exclusion. 
10     There are no special reasons for an award of costs in this case and so there will be no award of costs.


Saturday, June 28, 2014


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

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.)

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