Wednesday, October 22, 2014

SERGIO R. KARAS CO-CHAIRS MAJOR CANADA -US IMMIGRATION PROGRAM

I am pleased to report that the AILA- OBA program I co-Chaired last Friday, October 17 in Buffalo, NY "Canada / US Border Immigration: Sixth Annual Fall Conference" was incredibly well received. Thank you to all the speakers, government officials and to the more than 106 attendees who made the program a success!  See my website for details:

Canada / US Border Immigration: Sixth Annual Fall Conference

Wednesday, October 15, 2014

CITIZENSHIP APPLICANTS CANNOT QUESTION USE OF ICES REPORTS

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


Cheburashkina v. Canada (Minister
of Citizenship and Immigration)


Between
Liudmila Cheburashkina, Applicant, and
The Minister of Citizenship and Immigration, Respondent
And between
Vladislav Cheburashkin, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 979
2014 FC 847

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

 Federal Court
Toronto, Ontario

Diner J.


Heard: August 18, 2014.
Judgment: September 10, 2014.
(51 paras.)


JUDGMENT AND REASONS

·       DINER J.:-- 
I. Overview
1     This is an application under s.14(5) of the Citizenship Act, RSC 1985, c C-29 [Act] and s. 21 of the Federal Courts Act for judicial review of the November 27, 2013 decisions of Citizenship Judge Babcock [Judge], which found that the Applicants did not accumulate the requisite days of residence required for a grant of citizenship in accordance with s. 5(1)(c) of the Act.
2     While the two matters were filed separately, given the almost identical facts, common dates of citizenship filings and of the Judge's refusals, the two matters were heard together at the request and on consent of the parties. The parties also agreed to one set of combined reasons being issued to address both proceedings. Therefore, these reasons are consolidated into one decision and a copy will be placed in each file.
II. Facts and Decision
3     The Applicants entered Canada and became permanent residents on December 28, 2006.
4     Vladislav Cheburashkin applied for Canadian citizenship on August 20, 2010 (1330 days after his arrival in Canada). His wife, Liudmila Cheburashkina, applied for citizenship on April 05, 2010 (1195 days after her arrival).
5     Both Applicants made it clear that they were slightly shy of meeting the 1095 day residency requirement within their citizenship applications, and subsequent residence questionnaires, but in both cases, (i) having over 1000 days of physical residency in Canada, and (ii) evidencing strong attachment to Canada, including Canadian jobs, tax filings, real estate acquisitions, and two Canadian-born children.
6     At their respective hearings in October and November of 2013, the Applicants signed, at the request of the Judge, consents authorizing disclosure of the history of their entries into Canada, known as an Integrated Customs Enforcement System [ICES] report, which is an entry log from the Canada Border Services Agency [CBSA].
7     The applications were both rejected on November 27, 2013 [Decisions], after the Judge applied a strict residency test requiring 1095 days in Canada of the 1460 possible (i.e. 3 full years in Canada out of a window of 4 years).
8     In his Decisions, the Judge found that entrances listed on the ICES reports did not match the absences listed on the residence questionnaires submitted by the Applicants.
9     As is often the case with citizenship cases where one has to look back at travel which can predate the application forms, and ultimately the citizenship interview, by several years, the precise number of days absent from Canada was not entirely clear, given the various residency numbers cited by (a) the Applicants in their original applications, (b) subsequently in their residence questionnaires, (c) Citizenship and Immigration Canada [CIC] in its calculation, and (d) the Judge in his Decisions and background notes.
10     Specifically, with respect to Mr. Cheburashkin, the Judge found that "absences re [sic] calculated would be 700+ days". Neither the Decisions nor the handwritten notes provide specificity regarding the calculation, which was over 400 days more than Mr. Cheburashkin's statement of absences (296 days).
11     With respect to Mrs. Cheburashkina, the Judge also arrived at a differential of over 400 days as between his calculation of her absences (629 days) and Ms. Cheburashkina's submission of 177 days.
12     The Judge further stated that CBSA's ICES report listed five entrances to Canada during the relevant period, and found that these entrances did not match Mrs. Cheburashkina's account of her entrances. In fact, as pointed out by counsel, only one of the five absences listed by CBSA does not match what Mrs. Cheburashkina had provided. Indeed, she listed more entrances to Canada in her residency lists than CBSA did in its ICES report.
13     At neither hearing, based on the Applicants' affidavits and on other evidence presented to the Court, were the Applicants provided with an opportunity to explain or address these significant discrepancies.
14     In applying the "physical presence" test described in Re Pourghasemi, [1993] F.C.J. No. 232, the Judge determined none of the residency periods would satisfy the 1095 day residence requirement of the Act. The Judge refused both applications, and those denials form the basis of these applications to appeal the two Decisions.
15     The Judge also declined, in both Decisions, to make a favourable recommendation for a discretionary grant of citizenship pursuant to s 5(4) of the Act.
III. Issues and Submissions
16     The issues raised are twofold, namely:

·       A. 
Did the Judge breach the principles of procedural fairness, by relying on extrinsic evidence, failing to disclose the ICES report and/or raise the residency concerns with the Applicants?
17     The Applicants submit that the Judge's failure to disclose the ICES reports was a breach of procedural fairness and natural justice, because it precluded them from addressing the Judge's concern that the Applicants may have been out of the country for a period of over 700 and 629 days, respectively.
18     In so doing, the Applicants submit that the Judge both failed to explain the discrepancy between the days out of the country provided by the Applicants' residency questionnaires and the conclusions he garnered from the ICES reports, and more importantly, to provide an opportunity for the Applicants to address the significant differentials between those two sources.
19     The Applicants further point out that if a decision-maker is to rely on extrinsic evidence, which they allege the ICES reports were, then the details of the reports and the concerns elicited from the said reports should have been raised directly with them.
20     By citing the diverging physical residency periods in Canada, the Applicants argue that the Judge implicitly made negative credibility findings against them.
21     The Applicants further assert that the failure to advise them which test was being applied to the adjudication of the matter, was a breach of procedural fairness.
22     In response, the Respondent argues that there was no breach of procedural fairness or natural justice in any respect, because the Applicants had every reason to know that residency would be at issue in a citizenship application due to the residency part of the original application, and subsequent residence questionnaires. Furthermore, the ICES reports could have been accessed by them independently.
23     The Respondent denies that there were any negative credibility findings in the Decisions. Rather, the Judge was confronted with competing periods of residency and none of these periods met the required threshold of the Act.
24     The Respondent further denies any procedural fairness breach occurred through the Judge's failure to advise in advance that he would apply the Pourghasemi residency test.

·       B. 
Did the Citizenship Judge err in applying the Pourghasemi test for citizenship instead of the Koo test?
25     The Applicants plead that the failure to apply the Koo test was unreasonable, given the circumstances, namely, that had the Judge received clarification on the extent of the absences, and found that the applicants indeed were in Canada for the periods they asserted, then he might have picked the Koo test and come to the conclusion that they had centralized their mode of living in Canada, through the qualitative Koo analysis.
26     The Respondent counters that the Decisions were entirely reasonable because the Applicants would not meet the statutory criteria under any of the residency periods provided to the Judge by the Applicants, or the ICES reports, i.e. none of the various periods met statutory requirement of 1095 days. The Respondent further submits that it was completely open and reasonable for the Judge to apply whichever citizenship test he chose.
IV. Standard of Review
27     Where procedural fairness is concerned, a standard of correctness must be applied: See Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Minister of Citizenship and Immigration) v. Takla, 2009 FC 1120.
28     The citizenship test applied and the Judge's assessment under that test, are to be reviewed on a reasonableness standard: Gavriluta v. Canada (Citizenship and Immigration), 2013 FC 705 at para 27.
V. Analysis

·       A. 
Did the Judge breach the principles of procedural fairness, by relying on extrinsic evidence, failing to disclose the ICES report and/or raise the residency concerns with the Applicants?
29     It has been held by this Court on numerous occasions that when an immigration official relies on extrinsic evidence without giving the applicant a chance to respond, a breach of procedural fairness occurs. Extrinsic evidence is evidence that the applicant is unaware of because it comes from an outside source: See Dasent v Canada (Minister of Citizenship and Immigration), [1995] 1 FC 720 [Dasent] at para 23; Feng v Canada (Citizenship and Immigration, 2014 FC 386 [Feng] at para 15.
30     Dasent and Feng also stand for the proposition that one must consider whether the applicant had the opportunity to deal with the evidence, if procedural fairness is to be observed.
31     In the present cases, the Judge relied on ICES reports which the Applicants consented to and could have accessed on their own initiative. It is not the Court's view that ICES reports, which are a common feature of citizenship analyses, and which applicants may apply for on their own accord, constitute extrinsic evidence.
32     The more significant question with regard to procedural fairness raised by the Applicants is whether by relying on the ICES reports and thereafter failing to give the Applicants the right to comment on the negative residency assessment arising from these reports, or provide a fair opportunity of correcting or contradicting that assessment before making his decision, the Judge breached the principles of procedural fairness per Muliadi v Canada (Minister of Employment and Immigration), [1986] 2 FC 205 (FCA), and its progeny.
33     The Applicants take particular issue with the fact that the Judge concluded that a fundamental differential existed between their evidence regarding days resident in Canada, and their residency calculations (a delta of well over 400 days for each of the two cases).
34     Nothing was brought to the attention of the Applicants about the discrepancy based on their uncontradicted affidavit evidence. Mr. Cheburashkin, for instance, states in the relevant paragraphs of his affidavit:

·       6. 
On November 4, 2013, I appeared for an interview with a citizenship judge. The judge asked me questions about my residence in Canada. At the interview, the citizenship judge asked me to sign a document regarding my history of entries to Canada thus giving permission to the Canada Border Services Agency to disclose the details of my entries. I did not hear anything further from the citizenship judge. 

·       8. 
...I have read the reasons for refusal provided by the citizenship judge. The citizenship judge states that the report of entrances into Canada received from the Canada Border Services Agency lists entrances that do not match what I stated in my application and the residence questionnaire. The citizenship judge did not disclose the report from the Canada Border Services Agency to me and never gave me an opportunity to address his concerns. 
35     Ms. Cheburashkina provides similar evidence in her Affidavit regarding the lack of any opportunity to address the residency issue.
36     The problem with the Applicants' position regarding the impugned Decisions is twofold.
37     First, the Applicants were aware that residency was an issue, given the fact that there already were discrepancies between the citizenship application and the residency questionnaires and neither of these met the statutory test.
38     They were aware of these discrepancies going into the citizenship hearings. The fact that the Judge then asked for ICES consents surely signalled to the Applicants that residency was to be an issue, even if it had not been the subject of discussion at the hearings.
39     With respect to the Applicants' position on credibility, the Judge does not end up basing his decisions on credibility issues arising from the various residency periods. Rather, he simply states that the statutory residency requirement per the Pourghamesi test has not been met in any of the various residency periods on the Record.
40     In other words, the Decisions turned on the failure to meet the statutory test of 1095 days, no matter which version of the residency facts the Judge chose to believe. Indeed, the Judge does not identify which residency total he believes in his Decisions; he simply says that the Pourghamesi test has not been met.
41     The Applicants point to Justice Manson in Abdou v Canada (Citizenship and Immigration), 2014 FC 500 [Abdou], for the proposition that the Judge unfairly failed to provide the opportunity to counter credibility concerns.
42     In Abdou, there were differing accounts of residency as between the application (34 days absent) and the residence questionnaire (354 days absent), and unlike in the present situation, both of those two Abdou residency periods would have met the statutory test, if believed. The Citizenship Judge in Abdou pointed out credibility concerns regarding Mr. Abdou, but according to the applicant's affidavit evidence in that case, did not question him on these concerns during the citizenship interview. Justice Manson relied on Johar v Canada (Citizenship and Immigration), 2009 FC 1015 [Johar], in coming to the conclusion that there had been procedural fairness gaps in failing to provide the applicant with an opportunity to respond.
43     In Johar, like in Abdou, the applicant maintained he had met the physical residency requirement.
44     Justice Manson decided Donahue v Canada (Citizenship and Immigration), 2014 FC 394 [Donahue], one month before he decided Abdou. The facts of Donohue are similar to the instant cases, because differing versions of residency all fell short of the statutory requirement. In Donohue, the applicant also challenged the selection of the citizenship test, as well as procedural fairness in the face of credibility concerns and physical residence discrepancies.
45     Justice Manson found in Donohue that in the circumstances of a clear failure to meet the strict physical presence test, which was open to the Citizenship Judge to choose based on significant jurisprudence, ambiguity around credibility is immaterial.
46     The same principle applies here: it was open to the Judge to choose which test to apply, and there is nothing wrong with choosing the Pourghasemi test.
47     Once that test was chosen by the presiding Citizenship Judge, and once that test was identified by the Judge in his Decisions, any credibility concerns - if there were indeed any - became moot upon the application of the facts to the law. In short, even the best evidentiary scenario of the Applicants' number of days in Canada did not meet the standards of the Pourghasemi test.
48     There is no evidence on this Record that any undertaking or indication was made with respect to the type of test that was going to be applied, as there was in Qin v Canada (Citizenship and Immigration), 2014 FC 846.

·       B. 
Did the Citizenship Judge err in applying the Pourghasemi test for citizenship instead of the Koo test?
49     As stated above, the Court has been clear in numerous cases that it is up to the Citizenship Judge which test to choose: See Knezevic v. Canada (Citizenship and Immigration), 2014 FC 181; Navidi v Canada (Citizenship and Immigration), 2008 FC 408.
50     There are recent cases supporting the rationale of Justice Rennie in Martinez-Caro v Canada (Citizenship and Immigration), 2011 FC 640, which comprehensively reviewed the history of the Pourghasemi strict residency test, and supported its reasons: See Donohue and Huang v Canada (Citizenship and Immigration), 2013 FC 576.
VI. Conclusion
51     This Court finds that it was reasonable for the Citizenship Judge to select and apply the Pourghasemi test.
JUDGMENT
THIS COURT'S JUDGMENT is that the applications in T-89-14 and T-91-14 are dismissed and a copy of these Reasons shall be placed in each Court file. No costs shall be awarded.
DINER J

Friday, October 10, 2014

MORE PROBLEMS WITH THE TEMPORARY FOREIGN WORKER PROGRAM COME TO LIGHT

If a program is not enforced properly, no one will abide by it. There was obviously a complete disconnect between the policy and the reality. It is not surprising that the abuse was rampant and that the government enacted the unnecessary and nonsensical changes on June 20, 2014.  If they would have enforced the rules and prosecuted abusers under the previous LMO program, the changes would not have been necessary. See the from today's Globe and Mail:

http://www.theglobeandmail.com/news/politics/ottawa-slow-to-monitor-temporary-foreign-worker-program-compliance/article21042738/


Tuesday, October 7, 2014

VALIDITY OF SIKH MARRIAGE QUESTIONED IN SPONSORSHIP REFUSAL

The immigration officer and the IAD decisions to question the validity of the Sikh marriage below was found to be reasonable by the Federal Court.

Saran v. Canada (Minister of Citizenship and Immigration)

Between
Kulwant Saran, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 942
2014 FC 877

Docket: IMM-1405-14

 Federal Court
Vancouver, British Columbia

Manson J.


Heard: September 11, 2014.
Judgment: September 15, 2014.
(20 paras.)


JUDGMENT AND REASONS
1     MANSON J.:-- This is an application for judicial review of the decision of Lynne Cunningham, a panel member of the Immigration Appeal Division [IAD] of the Immigration and Refugee Board at Calgary, Alberta, to dismiss the Applicant's appeal of a decision to refuse his wife's permanent resident visa as a member of the family class.
I. Issue
2     Was the decision of the IAD unreasonable?
II. Background
3     The Applicant is a citizen of Canada. He emigrated in November 1996 as a dependant of his mother. He married his first wife in March 2002 in India. After sponsoring her to come to Canada in April 2005 she admitted to marrying him only to come to Canada. The couple separated in September 2005, and divorced officially on February 22, 2007.
4     The Applicant and his second wife are both Sikh by religion. The Applicant suffers from a physical disability and his wife suffers issues with her leg as a result of contracting polio as a child.
5     The couple were married in India on May 3, 2009. The Applicant then flew back to Canada on July 1, 2009. He has returned to India every year except 2011 for approximately 5 and a half months each visit.
6     The couple maintains that when the Applicant is in India, they live as husband and wife in their ancestral home in Saddowal, in Punjab and that they have recently begun trying to conceive a child.
7     Mr. Saran provided differing answers to the Officer and the IAD with respect to his intentions to sponsor his wife. He told the Officer that the 2 year delay in sponsorship was because he was moving from British Columbia to Alberta and wanted to be settled before her arrival. At the IAD hearing, Mr. Saran testified that he told his wife and her family that he would not be sponsoring her to Canada as he did not trust that she would not leave him after arriving in Canada.
8     On May 30, 2012, Ms. Kaur attended an in person interview with Citizenship and Immigration Canada [CIC]. Following the interview, the Officer refused the Applicant based on his finding that the marriage was not legal as the Bride and Groom did not walk around the Holy Book four times as is customary in Sikh tradition. This fact is admitted by the Applicant and is not in dispute. The Officer also found that the marriage was not genuine.
9     The IAD held an oral hearing for the Applicant's appeal of the Visa Officer's decision to reject his application on February 3, 2014. The Applicant attended in person with counsel and his wife testified via telephone. The IAD dismissed the Applicant's appeal on February 7, 2014.
10     The decision of the Visa Officer and the IAD to refuse the Applicant's wife's application was based entirely on the determination that the marriage was not genuine and was primarily for the purpose of the Applicant's wife to acquire status or privilege under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
III. Standard of Review
11     The standard of review is reasonableness (Strulovits v Canada (Minister of Citizenship and Immigration), 2009 FC 435 at para 40; Dunsmuir v New Brunswick, 2008 SCC 9 at para 51).
IV. Analysis
12     The Applicant submits that the IAD failed to consider cogent evidence in their decision and thus have committed a reviewable error. The IAD hearing was to be a hearing de novo at which the "totality of the evidence adduced by the Applicant" was to be considered. Their failure to take into account evidence such as the financial support the Applicant provided his wife, as well as their period of cohabitation after marriage, and to focus only on minor contradictions, lead them to make unreasonable findings lacking in justification and intelligibility.
13     Further, the Applicant submits that the IAD as well as the Officer made their decision by applying an inappropriate and unreasonable level of cultural bias. "The 'genuineness' of the relationship must be examined through the eyes of the parties themselves against the cultural background in which they have lived" (Khan v Canada (Minister of Citizenship and Immigration), 2006 FC 1490 at para 16).
14     There were a number of reasons why the IAD decided the Applicant's marriage lacked credibility:

·        a. 
Despite claiming to spend a cumulative 18 months with his wife over the past several years, neither spouse actually knows very much of the other spouse (examples are given about inconsistencies and gaps in their testimony about their personal lives with one another); 

·        b. 
There was a glaring difference in answers to questions - - the precision with which certain information was provided (dates) against the long pauses to some answers which the Applicant and his wife would be reasonably expected to know for example, the frequency and times in which they communicate by telephone; whether the Applicant lives with his brother or a cousin; when the Applicant visited his wife in India in 2013; 

·        c. 
There was little objective evidence that supported their contention that they are a married couple or that they have spent any time together. 
15     The Visa Officer's concern over the formal validity of the marriage does not appear reasonable. However, the issue of the formal validity of the marriage was given little weight or reliance by the IAD in their decision and is thus not a determinative issue.
16     While the IAD is required to consider all the evidence before it, there is a presumption that they have done so and thus are not required to mention all the evidence in their reasons (Lai v Canada (Minister of Citizenship and Immigration), 2005 FCA 125 at para 90).
17     I find that the IAD considered the totality of the evidence, including the evidence of financial support that the Applicant supplied, as well as the length of time the couple spent together after their marriage before he left for Canada, in addition to the time spent visiting India (namely the evidence the Applicant claims was unreasonably ignored).
18     Moreover, the IAD reviewed the Applicant's and his wife's testimony about their months spent cohabitating when he is in India, the witnesses' credibility and discrepancies in their testimony, and found that little objective evidence was submitted supporting the genuineness of the marriage.
19     I do not accept that the interpretations of the Applicant and Appellant's relationship by the IAD and the Visa Officer project strong Western ideals on the couple, to the point where evidence contrary to their assumptions has been unreasonably discounted.
20     While there is some evidence that points to the validity of this marriage, there is also evidence that points to its lack of genuineness. It was within the Visa Officer and the IAD's reasonable discretion to find that the marriage is not genuine.
JUDGMENT

·        THIS COURT'S JUDGMENT is that

·        1. 
The application is dismissed; 

·        2. 
There is no question for certification. 

MANSON J.

Friday, October 3, 2014

DEPARTURE FROM CANADA AFTER CITIZENSHIP FILING NOT RELEVANT

The Federal Court held that the departure of an applicant after filing a citizenship application was not relevant to the four year application period to be considered. It is unclear, however, whether such departure would be relevant as to "intention to reside"under the new Citizenship Act which provisions are not yet in foree.

Deldelian v. Canada (Minister of Citizenship and Immigration)

Between
Kevork Deldelian, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 928
2014 FC 854

Docket: T-84-14

 Federal Court
Montréal, Quebec

Harrington J.


Heard: August 13, 2014.
Judgment: September 9, 2014.
(14 paras.)


JUDGMENT AND REASONS
1     HARRINGTON J.:-- This is an appeal by Mr. Deldelian of a decision of a Citizenship Judge who denied his application for citizenship on the grounds that he did not meet the residency requirement. Section 5(1)(c)of the Citizenship Act in force at the relevant time required a permanent resident to have accumulated at least three years of residence in Canada within the four years immediately preceding the date of the application, which in this case was 7 March 2010. Mr. Deldelian certainly cut it close. He claimed he was physically present in Canada for 1,096 days during that four-year period, i.e. three years plus one day.
2     Citizenship judges, and this Court, have wrestled for many years with the meaning of "residence" within the Citizenship Act. Some judges have used a physical presence test while others have taken a more nuanced approach. In Re Papadogiorgakis, [1978] 2 FC 208 (TD), Associate Chief Justice Thurlow, as he then was, held that if a person was established here he did not cease to be a resident when he leaves for a temporary purpose. In Re Koo, [1993] 1 FC 286, Madam Justice Reed said the test was whether Canada was the place where the applicant "regularly, normally or customarily lives". However, in Re Pourghasemi, (1993), 62 FTR 122, Mr. Justice Muldoon applied a strict physical presence test.
3     Our jurisprudence developed such that an appeal would not be granted if the Citizenship Judge selected and reasonably applied any one of these tests. Fortunately, Parliament has finally resolved this dilemma with the passage of the Strengthening of the Canadian Citizenship Act, SC 2014, c 22. The test is now physical presence of 1,460 days over the six-year period preceding the application, with at least 183 days of physical presence in each of the four last calendar years.
4     In this case, the Citizenship Judge applied the strict physical presence test and was not persuaded that Mr. Deldelian was here the required number of days. Without doubt, the burden fell upon him (Chen v Canada (Citizenship and Immigration), 2008 FC 763).
5     It cannot be said that the record clearly shows that Mr. Deldelian was absent for at least 2 days of the 1,096 days he claimed to be present here. The Citizenship Judge simply did not believe him, and set out several reasons why. Counsel for Mr. Deldelian submits that some of the judge's statements are clearly wrong, that she failed to focus on the four years which were in issue, and that some of her doubts were perverse and capricious.
6     He has persuaded me that that is indeed the case. The appeal shall be granted and the matter referred back to another Citizenship Judge.
I. The decision under appeal
7     The judge formed the view that Mr. Deldelian was a scofflaw. Consequently, she did not give him any benefit of the doubt whatsoever.
8     The first issue relates to Employment Insurance. After he was declared redundant from his job in Montréal, Mr. Deldelian applied for EI benefits. He was approved on 28 July 2009 which benefits expired in mid-September that year. In the citizenship forms he was required to fill in, he declared that he was absent from the country four times during this overall timeframe. The first two absences were before he was approved. The third absence, which was to meet a prospective employer, not to actually work, was on the day he was approved. The fourth absence occurred after his benefits had expired in mid-September 2009.
9     The Citizenship Judge concluded that one could not leave the country and also claim EI benefits. She was also most concerned with the fact that Mr. Deldelian did not provide a satisfactory explanation as to why he departed from Canada the very day he submitted his citizenship application. This concern was irrelevant, as the four years in question ended the day before. Had the Citizenship Judge been dealing with the Act, as amended by the Strengthening of the Canadian Citizenship Act, this would have been a relevant consideration as one of the requirements is that the applicant intends to continue to reside in Canada.
10     Another issue raised is that there were two entries in the government datasheets that had not been listed by Mr. Deldelian in his application. These entries combined with stamps in his passport evidence two day trips. The forms he was required to fill in are somewhat confusing in that although he was called upon to list all trips out of the country, day trips do not count for the purpose of calculating the number of days one is out of the country.
11     Further, although there were various bank transactions which Mr. Deldelian claimed evidenced that he was in Canada, the Citizenship Judge would not accept these bank records as evidence because the account was operated jointly by Mr. Deldelian and his wife, and did not establish that he was in Canada. On the other hand, they did not establish that he was outside the country.
12     One troubling point relates to his LinkedIn profile which showed him as the General Manager of a hotel in Doha, Qatar, from 2009 to 2011. Although the Citizenship Judge accepted that the entry was incorrect as it was in obvious contradiction to his other claim that he was a hotel consultant in Montréal from October 2009 to March 2010, she did not accept his explanation as to why the entry was incorrect. His explanation was that he had made the entry in the expectation that he would obtain a job in Qatar. However, as a Jordanian, he encountered difficulties in obtaining a work permit. The LinkedIn entry is also somewhat suspect because there are medical records showing that he was in Montréal at least part of that time.
13     If the Citizenship Judge had limited her analysis to the four years immediately preceding Mr. Deldelian's application, it would have been necessary for me to determine whether her decision was sufficiently reasonable to withstand review in accordance with Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, particularly at paragraph 47. However, in addition to raising an issue with respect to his departure from Canada on the day he filed his application, she dealt with his son's schooling the year following, and the exact role of his wife in his business following his citizenship application. It is not at all clear that the Citizenship Judge limited herself to the four years in issue. Indeed, she considered events which took place after he applied for citizenship. As stated by Mr. Justice O'Keefe in Shakoor v Canada (Minister of Citizenship and Immigration), 2005 FC 776, at paragraphs 39 and 40:

·        [39] From a perusal of the reasons, it cannot be determined whether the citizenship judge was referring to the extensive absences from Canada after February 14, 2003, the date of the applicant's application, or just the absences prior to the date of his application. I cannot tell whether the citizenship judge took into account the absences after the date of the application in arriving at a conclusion on the applicant's application. If she did, it would constitute a reviewable error. 

·        [40] Accordingly, the appeal of the citizenship judge's decision must be allowed, as there is a live issue as to the actual number of days the applicant was absent from Canada. I will refer the matter back to a different citizenship judge for redetermination. 
See also Zamzam v Canada (Citizenship and Immigration), 2009 FC 959.
14     The appeal shall be granted.
JUDGMENT

·        THIS COURT'S JUDGMENT is that

·        1. 
The appeal from a decision of the Citizenship Judge, dated 27 August 2013, is granted. 

·        2. 
The application is referred back to another Citizenship Judge for redetermination. 

HARRINGTON J.

FEDERAL COURT RULES ON CITIZENSHIP DISPUTE ON CRIMINAL WHOSE PARENTS HAD DIPLOMATIC STATUS

The case below appears to be the end of a long dispute over whether a person born to parents who had diplomatic status working for the Indian High Commission, received citizenship in error. The court ruled that it was irrelevant whether the person was a citizen of another county. This is a highly unusual case.

Budlakoti v. Canada (Minister of Citizenship and Immigration)
Between
Deepan Budlakoti, Applicant, and
Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 912
2014 FC 855

Docket: T-1564-13

 Federal Court
Ottawa, Ontario

Phelan J.


Heard: June 16, 2014.
Judgment: September 9, 2014.
(50 paras.)



JUDGMENT AND REASONS
PHELAN J.:--
I. Introduction
1     This is an application for a declaration that Deepan Budlakoti [Applicant] is a Canadian citizen and not subject to the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Applicant was born in Canada in 1989 to parents who had come to Canada as employees of the High Commission of India.
2     There is a significant factual dispute between the parties as to whether the Applicant's parents left their Indian High Commission employment before or after his birth. If the parents left this employment before his birth, then the Applicant was entitled to Canadian citizenship by virtue of his birth in Canada. Nonetheless, he has an Ontario birth certificate and has been issued two Canadian passports, presumably on the strength of the Ontario birth certificate.
3     The critical legislative provisions of the Citizenship Act, RSC 1985, c C-39, are:
3. (1) Subject to this Act, a person is a citizen if

·        (a) the person was born in Canada after February 14, 1977; 
...

·        (2) 
Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was 

·        (a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government;

·        (b) an employee in the service of a person referred to in paragraph (a); or

·        (c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a)
...

·        5. 
(1) The Minister shall grant citizenship to any person who 
(a) makes application for citizenship;
(b) is eighteen years of age or over;

·        (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner: 

·        (i) 
for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and 

·        (ii) 
for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; 

·        (d) has an adequate knowledge of one of the official languages of Canada; 

·        (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and 

·        (f) is not under a removal order and is not the subject of a declaration by the Governor in Council made pursuant to section 20. 
...

·        12. (1) Subject to any regulations made under paragraph 27(i), the Minister shall issue a certificate of citizenship to any citizen who has made application therefor.

·        (2) 
When an application under section 5 or 5.1 or subsection 11(1) is approved, the Minister shall issue a certificate of citizenship to the applicant. 

·        (3) 
A certificate issued pursuant to this section does not take effect until the person to whom it is issued has complied with the requirements of this Act and the regulations respecting the oath of citizenship. 
* * *

·        3. 
(1) Sous réserve des autres dispositions de la présente loi, a qualité de citoyen toute personne : 

·        a) 
née au Canada après le 14 février 1977; 
...

·        (2) 
L'alinéa (1)a) ne s'applique pas à la personne dont, au moment de la naissance, les parents n'avaient qualité ni de citoyens ni de résidents permanents et dont le père ou la mère était: 

·        a) agent diplomatique ou consulaire, représentant à un autre titre ou au service au Canada d'un gouvernement étranger;

·        b) au service d'une personne mentionnée à l'alinéa a);

·        c) fonctionnaire ou au service, au Canada, d'une organisation internationale -- notamment d'une institution spécialisée des Nations Unies -- bénéficiant sous le régime d'une loi fédérale de privilèges et immunités diplomatiques que le ministre des Affaires étrangères certifie être équivalents à ceux dont jouissent les personnes visées à l'alinéa a). 
...

·        5. 
(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois: 
a) en fait la demande;
b) est âgée d'au moins dix-huit ans;

·        c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante: 

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

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

·        d) a une connaissance suffisante de l'une des langues officielles du Canada; 

·        e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté; 

·        f) n'est pas sous le coup d'une mesure de renvoi et n'est pas visée par une déclaration du gouverneur en conseil faite en application de l'article 20. 
...

·        12. (1) Sous réserve des règlements d'application de l'alinéa 27i), le ministre délivre un certificat de citoyenneté aux citoyens qui en font la demande.

·        (2) 
Le ministre délivre un certificat de citoyenneté aux personnes dont la demande présentée au titre des articles 5 ou 5.1 ou du paragraphe 11(1) a été approuvée. 

·        (3) 
Le certificat délivré en application du présent article ne prend effet qu'en tant que l'intéressé s'est conformé aux dispositions de la présente loi et aux règlements régissant la prestation du serment de citoyenneté. 

·        (Court underlining) 
II. Background

·        A. 
Immigration Matters
4     In overview, the Applicant was sentenced to three (3) years in prison for weapons trafficking and cocaine importation in 2010. While in prison, Citizenship and Immigration Canada [CIC] determined that despite his Canadian passport, the Applicant has never been a Canadian citizen. An admissibility report was prepared and the Applicant was declared inadmissible on the basis of serious criminality pursuant to s 4 of the IRPA.
5     India has denied that the Applicant is a citizen of India or entitled to citizenship but the record on this issue is sketchy at best.
6     The Applicant was released from prison into immigration detention, which he was released from in April 2013 subject to conditions. The subsiding paragraphs detail the particulars of the Applicant's relevant immigration matters.
7     In 2009, the Applicant was convicted of breaking and entering and sentenced to four (4) months in jail. In 2010, the Applicant was reported inadmissible for serious criminality based on this 2009 conviction. Proceedings seemed to grind to a halt when, despite CIC contending that the Applicant was not a citizen, he gave CBSA a copy of his passport.
8     On December 12, 2010, the Applicant was convicted of weapons trafficking, possession of a firearm while prohibited and of trafficking in narcotics (cocaine). He was sentenced to three (3) years in jail.
9     In May 2011, CIC provided the Applicant with an inadmissibility report, pursuant to the IRPA s 44, confirming inadmissibility due to criminality. A removal order was issued in respect of the 2009 conviction.
10     Following an admissibility hearing in October 2011, the Immigration and Refugee Board [IRB] determined on December 8, 2011 that the Applicant was inadmissible due to criminality. The IRB decision focussed on the question of whether the Applicant was a Canadian citizen.
11     In the IRB proceedings, the mother claimed that while pregnant with the Applicant, she had stopped working for the High Commission. The father testified that he had left his job in June 1989, applied for a Canadian work visa in Boston and moved into his new employer's home. Additionally, their new employer (Dr. Dehejia) testified that he travelled to Boston with the Applicant's father in the summer of 1989 to regularize the father's status.
12     The IRB member was not satisfied that the Applicant was a Canadian citizen and issued a deportation order against him [December 8, 2011 IRB decision].
13     Importantly, on May 24, 2012, Justice Barnes dismissed an application for judicial review of the December 8, 2011 IRB decision.
14     In 2012, the Applicant received a negative PRRA decision.
15     In December 2012, the Applicant completed his sentence and was released into CBSA custody. He has been released from custody on bonds and conditions which were amended on November 1, 2013 [November 1, 2013 IRB order].

·        The Applicant has brought a motion for interlocutory injunction prohibiting the legal enforcement of all immigration conditions imposed under the November 1, 2013 IRB order. 
16     On September 24, 2013, the Applicant filed this Notice of Application seeking a declaration of citizenship -- the present matter before this Court.

·        B. 
Citizenship Declaration Matters
17     The Applicant's problems begin with the status of his parents' employment at the time of his birth in October 1989. The parents came to Canada in 1985 to work as domestic helpers to the Indian High Commissioner to Canada. That employment terminated at some point in 1989 -- the exact date is hotly contested and the facts in this record are difficult to make out.
18     The parents entered Canada in 1985, as accredited domestic workers of India's High Commission; a diplomatic note to that effect was delivered to DFAIT on September 30, 1985.
19     On August 26, 1988, another diplomatic note indicated that the parents had moved into the Indian High Commissioner's official residence to continue their domestic work.
20     The Applicant contends that his parents quit the Indian High Commission in June 1989. In that regard, he relies on the same basic facts as were before the IRB.
21     The Applicant relies on the affidavit of Dr. Dehejia. In his affidavit, Dr. Dehejia admitted that he did not recall specific dates as to when the parents began working for him.
22     The Applicant also relies on the affidavit of S.J.S. Chhatwal, a former Indian High Commissioner, whose evidence was that the parents left his employment in June 1989 but cannot otherwise remember anything from that period. The integrity of this affidavit is undermined because the 3rd page of the four-page affidavit is missing.
23     This viva voce/affidavit evidence is further undermined by several pieces of contemporary documentation:

·       
on December 6, 1989, the Applicant's father received an employment authorization allowing him to begin work for a new employer instead of the Indian High Commissioner; 

·       
the corresponding FOSS Note states: "Head of family and wife were both employed by the Indian High Commission until Dec/89". The Note contains a reference to the son (this Applicant) not being a Canadian citizen; 

·       
the Applicant's father travelled, on his Indian diplomatic passport, on December 13, 1989; 

·       
a diplomatic note from the Indian High Commission dated December 21, 1989 reported that the father and mother left the service of the High Commissioner of India on December 12 and 20, 1989 respectively (Mr. Chhatwal claimed that the note is in error but this has not been confirmed by an official of the Indian government); and 

·       
on January 2, 1990, Canada revoked the parents' diplomatic status. 
24     To round out the facts, the parents filed for and ultimately obtained Canadian citizenship. In both their citizenship applications, the parents claimed their address as that of Dr. Dehejia, from October 1989 to August 1993, despite claiming elsewhere that they had started working for him in June 1989. Importantly, before filing for citizenship, the parents, in June 1992, applied for permanent resident status listing the Applicant as a dependent child. A visa and record of landing was issued for the Applicant.
25     The Applicant, having been born in Ottawa on October 17, 1989, holds an Ontario birth certificate, and had been issued a first and then a second Canadian passport.
26     The case turns on whether the Applicant's parents were on October 17, 1989, employees in the service of a diplomatic officer in accordance with s 3(2)(b) of the Citizenship Act, RSC 1985, c C-29.
27     The issues in this matter are:

·       
Is the Applicant a Canadian citizen? 

·       
Has the Applicant been made stateless by some action of the Respondent? 

·       
Are the Applicant's rights being violated under the current arrangement? 

·       
Should a declaration of citizenship be issued at this time? 
The first and last issues are interrelated.
III. Analysis
28     There are three principal reasons for not granting the core relief sought -- a declaration of Canadian citizenship.
29     Firstly, I have grave doubts that this Court can and should issue a bare declaration of citizenship unrelated to some other relief or proceedings. The legislative scheme leaves to the Minister or potentially a citizenship judge the task of providing the documentation of citizenship. A refusal to provide such documentation, such as a certificate of citizenship, would then be reviewable by this Court.
30     Under the current procedure, this Court is asked to declare a person a citizen; however, there is no legislation suggesting that it is the function of this Court to make such a bald declaration. One may ask rhetorically, whether such relief is open to any person desiring citizenship.
31     Secondly, this matter was already subject to a Court decision, raising the matter of issue estoppel. The December 8, 2011 IRB decision held that the IRB was not satisfied that the Applicant was a Canadian citizen. That decision was upheld by Justice Barnes on May 24, 2012.
32     This declaration proceeding is a collateral attack on the December 8, 2011 IRB decision and an "end run" on Justice Barnes' decision on judicial review. The issue of citizenship was central to those decisions; the facts pleaded were the same and the evidence tendered was much the same as in this declaration proceeding.
33     In my view, the issue of citizenship has been dealt with and this Court ought not to revisit the matter under a subsequent but parallel proceeding.
34     Thirdly, the evidence in this case does not justify the relief sought. It might have been preferable if this case had been converted to an action (where credibility can be better tested) but the Court must deal with the evidence as presented. The record does not establish the Applicant's claim to citizenship by reason of birth in Canada.
35     The Applicant's case is significantly undermined by the documentary evidence and the internal inconsistency in its own records including:

·       
the Applicant's father did not receive an employment authorization permitting work outside the High Commission until December 13, 1989; 

·       
The FOSS Notes confirming that the father worked at the Indian High Commission until December 1989 and the Applicant's status as a non-Canadian citizen; 

·       
the Indian High Commission diplomatic note confirming that the parents ceased to work there after December 12 and 20, 1989 respectively; 

·       
the father's travels under a diplomatic passport up to December 13, 1989; 

·       
the parents' permanent resident application of 1992, which included the Applicant as part of the request -- a matter inconsistent with a claim of Canadian citizenship; and 

·       
the inconsistency between the parents' claim that they had left the High Commission employment in June 1989 and began work for a new employer, and the citizenship application that they lived at the new employer's house in October 1989. At the very least, the inconsistency undermines the main story-line. 
36     The affidavit evidence suffers from being based on the recollection of events 25 years ago; specifically, by the refusals to answer specifics from that period.
37     The Court prefers the documentary evidence to that of the recollections of Mr. Chhatwal and Dr. Dehejia because the documentary evidence was made at the relevant time and is more consistent with other related evidence.
38     The Court has credibility concerns about the evidence relied on by the Applicant, both because of the inconsistencies and contradictions caused by the 25 year time lapse therein and the witnesses' responses when challenged.
39     The fact that passports were issued to the Applicant is not, in this case, determinative of citizenship. I adopt the reasoning of Justice Strickland in Pavicevic v Canada (Attorney General), 2013 FC 997, 20 Imm LR (4th) 37, holding that issue estoppel does not arise in the case of a passport issued in error.
40     On the issue of whether the Respondent has taken any action to render the Applicant stateless, the Respondent has done nothing to deprive the Applicant of his Canadian citizenship. The Applicant's position is based on the erroneous assumption that the Applicant initially had Canadian citizenship.
41     Whether the Applicant has Indian citizenship or is entitled to Indian citizenship is not a matter which this Court can decide. At the very minimum there is no expert evidence on Indian law and the Applicant's entitlements to Indian citizenship.

·        The law relied on by the Applicant relates to revocation of citizenship and is not applicable or persuasive in these circumstances. 
42     On the issue of violation of the Applicant's rights, the Applicant claims violations of sections 6 and 7 of the Charter.
43     With respect to s 6 rights, the Applicant's position is dependent on his being a Canadian citizen. In Solis v Canada (Minister of Citizenship and Immigration) (2000), 186 DLR (4th) 512 (FCA), 96 ACWS (3d) 455, Justice Rothstein, then on the Court of Appeal, confirmed that for s 6 Charter rights to be engaged, the person must be a citizen.
44     Having concluded that the Applicant has not established his Canadian citizenship, there can be no violation of s 6 Charter rights.
45     With respect to s 7 Charter rights, the Applicant is entitled to rely on the protection of this provision. The Applicant argues that absent citizenship, he faces the threat of removal from the country of his birth and has been rendered stateless, in violation of his right to liberty and to security of the person including access to basic Canadian social services such as health care.
46     The Applicant, while entitled to s 7 Charter protection, has failed to establish a violation of the rights accorded by the provision.

·        As Justice Mandamin held in Lee v Canada (Minister of Citizenship and Immigration), 2008 FC 614, 167 A.C.W.S. (3d) 859, the denial of citizenship is not synonymous with deportation (where s 7 Charter rights would crystallize). 
47     Further, the denial of state funded health care does not violate s 7 of the Charter, as held in Chaoulli v Quebec (Attorney General), 2005 SCC 35, at paragraph 104:

·        104 The Charter does not confer a freestanding constitutional right to health care. However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter. We are of the view that the prohibition on medical insurance in s. 15 of the Health Insurance Act, R.S.Q., c. A-29, and s. 11 of the Hospital Insurance Act, R.S.Q., c. A-28 (see Appendix), violates s. 7 of the Charter because it impinges on the right to life, liberty and security of the person in an arbitrary fashion that fails to conform to the principles of fundamental justice. 
48     While an Oakes test analysis is not required here, in considering the objectives of the Citizenship Act, I can do no better than to quote Justice Shore in Al-Ghamdi v Canada (Foreign Affairs and International Trade), 2007 FC 559, 314 FTR 1:

·        [74] The objective of paragraphs 3(2)(a) and (c) of the Citizenship Act is to ensure that citizenship is not accorded to someone who is immune from almost every obligation of citizenship (e.g. paying taxes and respecting criminal law). This is manifestly an important objective. 

·        Rational connection between the measure and the objective

·        [75] In an effort to ensure that no citizen is immune from the obligations of citizenship, denying citizenship is tightly connected to the objective. 

·        [76] The only other alternative would be not to grant immunity to the children of individuals with diplomatic status. This would violate long standing tradition in international law and interfere with the exercise of the Crown's prerogative over international affairs. 

·        [77] It is not necessary that the government demonstrate that the means chosen is the least impairing imaginable. It is only necessary that "the law falls within a range of reasonable alternatives". Where this is the case "the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement." (Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827.) 

·        Proportionality in respect of the restriction and the objective

·        [78] In measuring the proportionality of the restriction and the objective, it is important to recognize paragraphs 3(2)(a) and (c) only have the effect of denying Canadian citizenship. Although Canada cannot control sovereign foreign states and be certain that children born of every foreign diplomat will be entitled to citizenship in their home country, it is nonetheless, reasonable to assume that most would be and therefore paragraphs 3(2)(a) and (c) treat these children no differently than every other citizen born in their parents' home country. 

·        [79] As any other foreign national, the Applicant can apply for permanent residence pursuant to the IRPA, and once the residency obligations as set out in section 5 of the Citizenship Act are met, request to become a citizen. 

·        [80] In addition, because the conditions as set out in paragraphs 3(2)(a) and (c) reflect the standards of international law, it meets the requirements of being demonstrably justified in a free and democratic society. 
49     Therefore, even if there was a violation of s 7 of the Charter, the challenge would not survive an Oakes test analysis.
IV. Conclusion
50     For all these reasons, I would dismiss this application for a declaration with costs.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for a declaration is dismissed with costs.

PHELAN J.
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