Tuesday, August 12, 2014

COURT NOT PERSUADED BY APPLICANT'S EXCUSE OVER WIFE HOSPITALIZED

The Federal Court was not persuaded by an applicant's argument that he couldn't concentrate at the citizenship hearing because his wife had spent two days in the hospital.


Al-Kaisi v. Canada (Minister of Citizenship and Immigration)

Between
Ali Al-Kaisi, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 806

2014 FC 724

Docket: T-2021-13

 Federal Court
Toronto, Ontario

Shore J.


Heard: July 2, 2014.
Judgment: July 22, 2014.

(28 paras.)




JUDGMENT AND REASONS

SHORE J.:--

I. Overview

1     The bestowal of citizenship from a country where one was not born is a privilege, not a right. The citizens of Canada, through their legislative branch of government, have established minimum requirements that one must meet if the privilege of citizenship and the rights which ensue are to be bestowed. An ability to communicate with other citizens and to have a basic fundamental knowledge of the history, political structure, and characteristics of Canada are amongst the reasonable requirements by which to be granted the privilege of citizenship (Shah v Canada (Minister of Citizenship and Immigration), 2012 FC 852).

II. Introduction

2     This is an appeal, pursuant to subsection 14(5) of the Citizenship Act, RSC 1985, c C-29 and section 21 of the Federal Courts Act, RSC 1985, c F-7, brought on behalf of the Applicant, from a decision of a Citizenship Judge, dated October 25, 2013, in which his application for Canadian citizenship was denied according to paragraph 5(1)(d) and (e) of the Citizenship Act.

III. Background

3     The Applicant, Mr. Ali Al-Kaisi, is a citizen of Iraq. In 2007, he and his wife and their children applied for refugee protection. They were granted refugee status by the Canadian Embassy in Syria approximately 12-18 months later.

4     The Applicant and his family arrived in Canada on October 20, 2008, and applied for Canadian citizenship exactly three years later, on October 20, 2011.

5     On October 9, 2013, the Applicant attended a hearing before the Citizenship Judge, and on October 25, 2013, the Citizenship Judge issued his decision in which he did not approve the Applicant's citizenship application on the basis that the Applicant failed to meet the requirements of paragraph 5(1)(d) and (e) of the Citizenship Act.

IV. Decision under Review

6     The Citizenship Judge found that the Applicant did not meet the requirements of paragraph 5(1)(d) of the Citizenship Act as he did not have an adequate knowledge of either French or English. The Citizenship Judge noted that the Applicant was unable to provide answers to simple questions and did not demonstrate an adequate vocabulary for basic everyday communication.

7     The Citizenship Judge also found that the Applicant did not meet the requirements of paragraph 5(1)(e) of the Citizenship Act as he did not have an adequate knowledge of Canada. The Citizenship Judge indicated that the Applicant was unable to correctly answer questions related to one or more of the subjects outlined in the Citizenship Regulations, SOR/93-246 in his assessment of his knowledge of Canada.

8     Finally, the Citizenship Judge declined to recommend a favourable exercise of discretion on the basis of compassionate grounds pursuant to subsection 5(3) of the Citizenship Act, or as a case of special or unusual hardship or to reward services of exceptional value to Canada pursuant to subsection 5(4), as the Applicant did not present any evidence of special circumstances that would justify making such a recommendation.

V. Issues

9     The following issues are to be decided by this Court:


·        1) 

Did the Citizenship Judge breach the duty of fairness owed to the Applicant by failing to adjourn the hearing? 


·        2) 

Did the Citizenship Judge err by providing insufficient reasons on the Applicant's failure to meet the knowledge requirement? 


·        3) 

Did the Citizenship Judge err by failing to consider evidence and exercise his discretion to recommend a waiver of the language and knowledge requirements? 

VI. Relevant Legislative Provisions

10     Paragraphs 5(1)(d) and (e) of the Citizenship Act are relevant in this matter:

Grant of citizenship


·        5. 

(1) The Minister shall grant citizenship to any person who 

...


·        (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; 

* * *

Attribution de la citoyenneté


·        5. 

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

[...]


·        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; 

VII. Standard of Review

11     The first question raised by the Applicant is a question of law and is reviewable on a standard of correctness (Elfar v Canada (Minister of Citizenship and Immigration), 2012 FC 51).

12     The second and third questions raised are reviewable on the standard of reasonableness (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708; Desai v Canada (Minister of Citizenship and Immigration), 2013 FC 194).

VIII. Analysis


·        A. 

Did the Citizenship Judge breach the duty of fairness owed to the Applicant by failing to adjourn the hearing?

13     The Applicant primarily attacks the Citizenship Judge's decision for breach of procedural fairness by arguing that he proceeded with an oral examination despite having been informed of a problem with the Applicant's mental state. The Applicant argues that he informed the Citizenship Judge that he was having difficulty focusing on the questions due to fatigue from his wife having been in the hospital two days prior to the hearing.

14     Counsel for the Respondent objects to this argument on the basis that there is no evidence on the record that the Applicant informed the Citizenship Judge of this issue. The Respondent submits that this is a new issue raised by the Applicant in an attempt to contest the results of his oral examination.

15     The Court also approaches this allegation with some scepticism. There is no evidence on the record to suggest that the Applicant informed the Citizenship Judge of a weakened mental state during the hearing or that he requested an adjournment. As pointed out by the Respondent, the record does not even contain the medical report that the Applicant claims he submitted to the Citizenship Judge during the hearing to corroborate his wife's hospitalization (Applicant's Application Record [AR] at p 24). The Court finds it difficult to believe that this key piece of evidence would be excluded from the Certified Tribunal Record if it had in fact been provided to the Citizenship Judge.

16     The Court also notes that the record contains a letter drafted by the Canadian Center for Victims of Torture, which was not before the Citizenship Judge (AR at p 22). In fact, it was drafted post-hearing.

17     Given these irregularities, the Court finds it improbable that the Applicant's mental state was in fact brought before the Citizenship Judge. It would appear that the Applicant has added additional documentary evidence to the record to support his application.

18     Without adequate and reliable evidence on the record to substantiate the Applicant's claim on this issue, the Court does not find that its intervention is justified.


·        B. 

Did the Citizenship Judge err by providing insufficient reasons on the Applicant's failure to meet the knowledge requirement?

19     In his submissions, the Applicant also submits that the Citizenship Judge was obligated to explain why he failed to meet the knowledge criteria of the Citizenship Act. The Applicant argues that the Citizenship Judge's failure to explain which sections of the test he failed makes it difficult for him to understand why he failed it and prevents the Court from discharging its appellate function.

20     The Court does agree with the Applicant that the Citizenship Judge's reasons related to the knowledge requirement are inadequate. They effectively list the general criteria outlined in the Citizenship Regulations, without any further analysis; however, the Court is nonetheless of the view that its intervention is unwarranted.

21     The Citizenship Judge's decision, when read as a whole, is still well within the range of acceptable outcomes. As recently held by the Supreme Court of Canada in Newfoundland and Labrador Nurses' Union, above, the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, "the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible, acceptable outcomes" (at para 14).

22     In this case, the Court finds that it does. In addition to his finding regarding the Applicant's knowledge of Canada, the Citizenship Judge found that the Applicant had not met the language requirements in order to be granted citizenship. The Citizenship Judge noted that the Applicant was unable to answer even simple questions on familiar topics "using a variety of short sentences with connecting words" and "demonstrate an adequate vocabulary for basic everyday communication" The Court finds that this determination was sufficient, in and of itself, to deny the Applicant's application for Canadian citizenship. Therefore, the Citizenship Judge was not required to undertake an analysis of the results obtained by the Applicant on the knowledge portion of the test. The Citizenship Judge's finding regarding the Applicant's language proficiency was dispositive of the application.


·        C. 

Did the Citizenship Judge err by failing to consider evidence and exercise his discretion to recommend a waiver of the language and knowledge requirements?

23     The Applicant submits that the Citizenship Judge erred by failing to consider the evidence of his wife's hospitalization in considering whether to exercise his discretion pursuant to subsections 5(3) and 5(4) of the Citizenship Act. The Applicant argues that his wife's hospitalization impeded him from performing at the hearing and therefore could have justified a waiver of the requirements of paragraph (1)(d) and (e) of the Citizenship Act. The Citizenship Judge was therefore required, at least, to consider such in the reasons. The Applicant relies on the case of Bhatti v Canada (Minister of Citizenship and Immigration), 2010 FC 25, 87 Imm LR (3d) 166, in support of this argument, and asks the Court to use a similar rationale in this matter.

24     To be brief, the Court notes that the Applicant's argument on this issue is based on a supposition that the Citizenship Judge actually had the document before him. As discussed above, the Court is not convinced that it was; therefore, the Court finds that this argument is without merit.

25     In any event, even if the Court did agree that the document had been put before the Citizenship Judge, this factor would not have been sufficient to warrant a waiver of the requirements of the Citizenship Act. In the present case, unlike the Applicant in Bhatti, above, there is nothing on the record that demonstrates that Mr. Al-Kaisi's capacity to take the citizenship test would be impeded in the future.

26     The Court notes that in the case of Bhatti, above, this Court was deciding on a case of an applicant who had serious and permanent vision problems caused by diabetic retinopathy, which made it difficult for her to study or perform any written form of the citizenship test. The Court found that Ms. Bhatti's medical condition was sufficiently serious to warrant consideration of a waiver of the language and knowledge requirements, as it would inevitably continue to impede her preparation for the citizenship test. These facts are highly distinguishable from the Applicant's circumstances.

27     As the Applicant has provided no further evidence of special circumstances to justify a favourable recommendation to waive the requirements of paragraph (1)(d) or (e) of the Citizenship Act, the Court does not see a need to comment further on this issue.

IX. Conclusion

28     For all of the above reasons, the Applicant's appeal is dismissed.

JUDGMENT

THIS COURT'S JUDGMENT is that the Applicant's appeal be dismissed.

Obiter:

The Court recognizes that having to reapply and retake the citizenship test will require additional time, energy and resources from the Applicant, however, there is no evidence on the record that he will be unable to proceed with a new application. The Applicant can reapply for citizenship and use the time before his next citizenship test to hone his language skills and acquire a basic fundamental knowledge of the history, political structure, and characteristics of Canada.

SHORE J.

TIME AWAY FROM CANADA RESULTS IN CITIZENSHIP DENIAL

The situation described below happens quite often. Beware of applying for captainship too soon!


Edwards v. Canada (Minister of Citizenship and Immigration)

Between
Fiona Jane Edwards, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 777

2014 FC 748

Docket: T-1731-13

 Federal Court
Edmonton, Alberta

Roy J.


Heard: June 10, 2014.
Judgment: July 28, 2014.

(29 paras.)



 

JUDGMENT AND REASONS

1     ROY J.:-- Fiona Jane Edwards, the applicant, seeks to appeal, pursuant to subsection 14(5) of the Citizenship Act, RSC, 1985, c C-29 [the Act], the decision of a Citizenship Judge, on September 3, 2013, to refuse her Canadian citizenship application.

2     The facts of the case are simple and undisputed. The applicant is a citizen of the United Kingdom. She immigrated to Canada on March 3, 2003. Mrs Edwards is the mother of a child born on June 1, 2002. The daughter is a citizen of the United Kingdom and Canada. The applicant acquired permanent resident status on March 15, 2005. The application for citizenship was made on May 15, 2009. Given her frequent absences from Canada for work and vacations, the applicant had accumulated 892 days of physical presence in Canada.

3     Section 5 of the Act provides for the conditions under which citizenship shall be granted. It is paragraph 5(1)(c) that is relevant for our purposes:

Grant of citizenship

 

·        5. 

(1) The Minister shall grant citizenship to any person who 

...

 

·        (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; 

* * *

Attribution de la citoyenneté

 

·        5. 

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

...

 

·        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 

4     In her decision, the Citizenship Judge concluded that the relevant period in order to assess the residence requirements was May 15, 2005 to May 15, 2009, the day she made her application. Given that permanent residence was acquired some two months before the application to become a citizen was made, Mrs Edward showed an early interest in being awarded the Canadian citizenship.

5     However, by making her application so early after becoming a permanent resident, the applicant fell short of the number of days of residence found in paragraph 5(1)(c). Out of the 1460 days during that period, between May 15, 2005 and May 15, 2009, it is not disputed that the applicant was 203 days short as the Act seems to require at least 1095 days out of 1460 days. At 892 days, the applicant was in Canada 61% of 4 years. Indeed, the shortfall of 203 days is close to 20% short of the target.

6     In the case at hand, the Citizenship Judge considered the availability of three accepted tests for residency and chose the one requiring the physical presence for 1095 days out of 1460 days. There was no ambiguity in the choice that was made. The Citizenship Judge also specifically declined to make favourable recommendations to waive some requirements under subsection 5(3) and for a discretionary grant of citizenship under subsection 5(4) in special circumstances, concluding that there was no evidence to justify such a recommendation.

7     The applicant takes issue with the choice made by the Citizenship Judge to pick a test, one dubbed "physical presence", which resulted in the decision to dismiss her application for citizenship. She claims that the use of the criteria found in Re Koo, [1993] 1 FC 286 [Koo], another test that is available and has been used by some judges in some circumstances, should have produced a different result in view of her circumstances and justification for not meeting the threshold of 1095 days.

8     It will not be necessary to examine what standard of review should apply and whether or not the Koo criteria could have been satisfied in this case because I have concluded that the Citizenship Judge was entitled to decide to rely on the "physical presence" test as she did.

9     Mrs Edwards does a remarkable job of presenting the views of some of my colleagues who have lamented the availability of different tests to Citizenship Judges. That has made some conclude that the Koo test ought to prevail. With great respect, I disagree.

10     In spite of what would appear to many to be the intent of Parliament that a person be physically present, Thurlow ACJ ruled in Re Papadogiorgakis, [1978] 2 FC 208 [Papadogiorgakis], that it would be possible to consider a different period of time because the word "residence" is not defined in the Act. Residence does not require physical presence as long as the person has centralized her mode of living somewhere in Canada.

11     I would have thought that Parliament's intent could rather easily be deciphered. I find it difficult to accept that deemed residence is possible where a non-permanent resident is allowed, through a formula, one-half day of residence for every day that person is residing in Canada. Parliament's intent, surely, is that the non-permanent resident be in Canada for that residence to count as half for the purpose of being granted citizenship. The alternative would lead to an absurdity: a non-permanent resident could be credited on half-day of residence for residing outside of Canada. The purposive examination of the provision would lead me to conclude that Parliament intended physical presence to be the test. It is difficult to see how a complete absence from Canada can count when Parliament has expressed itself so clearly by even providing for a formula in certain circumstances. If for non-permanent residents only physical presence in Canada can satisfy the formula, I would have thought that the same physical presence would have applied to permanent residents: one cannot require physical presence for one class of applicants (non-permanent residents) and not for another (permanent residents).

12     Actually the use of the word "shall" in the chapeau of subsection 5(1), which commands an imperative (Interpretation Act, RSC, 1985, c I-21, section 11), suggests that Parliament did not intend to confer a broad discretion to Citizenship Judges, as the Papadogiorgakis decision allows and the Koo, supra, decision suggests to a lesser extent. To my way of thinking, a construction put on paragraph 5(1)(c) which would allow someone to spend barely 79 days in Canada, like in Papadogiorgakis, supra, hardly conforms to a statute that speaks in terms of "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".

13     Indeed, Reed J in Koo, supra, seems to have recognized that the amendments to the Act in 1978 did not show an intent that physical presence for the whole three-year period was not required. She writes at page 292:

 

·        I have read the Parliamentary debates and committee proceedings of that period and can find nothing to substantiate that conclusion. Indeed, quite the contrary seems to be the case. The requirement of three-year residence within a four-year period seems to have been designed to allow for one year's physical absence during the four-year period. Certainly, the debates of the period suggest that physical presence in Canada for 1,095 days was contemplated as a minimum. In any event, as has been noted above, the jurisprudence which is now firmly entrenched does not require physical presence for the whole 1,095 days. 

14     Without further analysis, Reed J leaves the issue hanging and rather concludes that the jurisprudence "is now firmly entrenched" and it "does not require physical presence for the whole 1,095 days." She then proceeds to suggest a series of questions in order to assist in the determination of "whether Canada is the country in which he or she has centralized his or her mode of existence." (page 293)

15     I note in passing that Reed J relies on the physical presence significantly in many of the questions that should be considered under the test she devised. Question 4 puts the issue squarely: "What is the extent of the physical absences -- if an applicant is only a few days short of the 1,095-day total it is easier to find deemed residence than if those absences are extensive?"

16     I find myself in general agreement with Muldoon J in Re Pourghasemi, [1993] 62 FTR 122, a decision which came after Papadogiorgakis, supra, and Koo, supra, and considered both. After commenting that Papadogiorgakis, supra, "stretches the meaning of paragraph 5(1)(c) of the present Citizenship Act almost beyond recognition" (para 5), Muldoon J, in his colourful way, proposes the following rationale for his reading of the section that Parliament meant an accumulation of three years of residence:

 

·        6 So those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves. It is not something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else. 

17     I share the view of Muldoon J that the reference in subsection 5(1) of "at least three years of residence in Canada" signals that Parliament meant physical presence. He said:

 

·        3 It is clear that the purpose of paragraph 5(1)(c) is to insure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized". 

18     It is not overly surprising that the debate, involving three different ways to interpret the test of residence in the Act, has remained unresolved. Now that Bill C-24, An Act to amend the Citizenship Act and to make consequential amendments to other Acts, 2nd Sess, 41st Parl, 2014 (assented to 19 June 2014), SC 2014, c 22 (short title being Strengthening Canadian Citizenship Act), has received Royal Assent, one hopes that the uncertainty has disappeared (see clause 3 of the Strengthening Canadian Citizenship Act which replaces paragraph 5(1)(c)).

19     What is a Citizenship Judge to do in those circumstances? Justice Lutfy, before he became Chief Justice of this Court, in Lam v Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410, ruled that Citizenship Judges may apply any of the three tests. Lutfy J was followed by Pelletier J, as he then was, in Canada (Minister of Citizenship and Immigration) v Mindich, (1999) 170 FTR 148 [Mindich].

20     There have been some views expressed in the last few years proposing that the Court depart from the position expressed in 1999 that it is for the Citizenship Judge to decide on the approach to be chosen. As put aptly by Pelletier J, "[t]he function of the judge sitting in appeal is to verify that the Citizenship Judge has properly applied the test of his or her choosing." (Mindich, para 9)

21     Starting perhaps with Canada (Minister of Citizenship and Immigration) v Chuang, 1999 CanLII 8716 (FC), where it was suggested that the test most favourable to the applicant ought to be used, a certain jurisprudence has developed that the Koo test is to be preferred. Such a view found an articulation in Canada (Citizenship and Immigration) v Takla, 2009 FC 1120. In that case, Mainville J, as he then was, wrote:

 

·        [47] Although I am of the view that the test of physical presence for three years maintained by the first jurisprudential school is consistent with the wording of the Act, it appears to me preferable to promote a uniform approach to the interpretation and application of the statutory provision in question. I arrive at this conclusion in an attempt to standardize the applicable law. It is incongruous that the outcome of a citizenship application is determined based on analyses and tests that differ from one judge to the next. To the extent possible, coherence in administrative decision making must be fostered, as Mr. Justice Gonthier properly indicated in IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, at page 327: 

 

·        It is obvious that coherence in administrative decision making must be fostered. The outcome of disputes should not depend on the identity of the persons sitting on the panel for this result would be "[TRANSLATION] difficult to reconcile with the notion of equality before the law, which is one of the main corollaries of the rule of law, and perhaps also the most intelligible one": Morissette, Le contrôle de la compétence d'attribution: thèse, antithèse and synthèse (1986), 16 R.D.U.S. 591, at p. 632. 

22     In Wong v Canada (Citizenship and Immigration), 2008 FC 731, Phelan J had, the year before, found that the "strict physical presence test has become of limited, if any, use and would (if it were the appropriate test) hardly require the involvement of a citizenship judge in the mathematical calculation of physical presence." (para 24) Harrington J, in Canada (Citizenship and Immigration) v Salim, 2010 FC 975, found that if the threshold of 1095 days of residence in Canada has not been met, the judge had to consider the Koo test. Similarly, Barnes J in Ghaedi v Canada (Citizenship and Immigration), 2011 FC 85, expressed the view that he preferred the line of cases following Takla, supra, although he reckoned that "there will continue to be two lines of divergent authority on this issue and others may be quite properly disposed to follow Lam, above." (para 16)

23     Scott J, as he then was, followed the approach advocated in Takla, supra, in his decision in Khan v Canada (Citizenship and Immigration), 2011 FC 215. There has also been some variation on that theme. Mactavish J, in Cardin v Canada (Citizenship and Immigration), 2011 FC 29, recognized that there are three approved residency tests. It would seem that the choice of tests is not as free as the Lam case proposes: "If the underlying rationale for the application of a particular test is not present on the facts of the case, then the application of the test simply does not make sense. That is, it is not reasonable." (para 18)

24     With great respect, I cannot follow this line of cases. I find it impossible to relegate what I believe is the clear language of section 5 in order to apply the Koo test. I would have thought that the Koo test is useful in cases where the applicant is very close to the 1095-day threshold and the Citizenship Judge does not want to rely on a recommendation to the executive branch of Government, in accordance with subsection 5(4) of the Act (subsection 5(4) gives discretion to the Governor in Council for citizenship to be granted without meeting the conditions precedent; the new subsection 5(4), once Bill C-24 has been proclaimed into law, grants that same discretion in the Minister.) It is ironic that the preference for the Koo test would be based on the need to standardize the applicable law as the uncertainty comes from judge-made-law created in spite of what, to some, would appear to be an unambiguous legislative pronouncement. Even the author of the Koo test recognized that Parliament's intent may well be the physical presence test.

25     Part of the rationale for espousing the Koo test was that the uncertainty in the law was seen as becoming permanent (see Tackla, supra, at para 46). With the passage of Bill C-24, a temporary situation would appear to have been finally remedied.

26     I cannot find any reason to do away with the physical presence test (Pourghasemi, supra). The existence of some case law to a different effect does not change the clear wording of para 5(1)(c) of the Act(see also Murphy v Canada (Citizenship and Immigration), 2011 FC 482). The Chief Justice of this Court reviewed carefully our jurisprudence in Huang v Canada (Citizenship and Immigration), 2013 FC 576. He concluded:

 

·        [24] What is clear from the foregoing is that the jurisprudence pertaining to the test(s) for citizenship remains divided and somewhat unsettled. 

 

·        [25] In this context, it is particularly appropriate that deference be accorded to a citizenship judge's decision to apply any of the three tests that have a long and rich heritage in this Court's jurisprudence. 

27     In my view, once the Citizenship Judge has settled on the test to be applied, the role of a judge of this Court is limited to ensuring that the test has been properly applied. "Blending" is not appropriate (Shubeilat v Canada (Citizenship and Immigration), 2010 FC 1260; Rousse v Canada (Citizenship and Immigration), 2012 FC 721; Sinanan v Canada (Citizenship and Immigration), 2011 FC 1347).

28     The initial decision to rely on one test is however one that the Citizenship Judge could make. I share the view of Rennie J expressed at paragraph 53 of the decision in Martinez-Caro v Canada (Citizenship and Immigration), 2011 FC 640:

 

·        [53] It is my opinion that Re Pourghasemi is the interpretation that reflects the true meaning, intent and spirit of subsection 5(1)(c) of the Act: Rizzo, paras 22 and 41. For this reason it cannot be said that the Citizenship Judge erred in applying the Re Pourghasemi test. Furthermore, the Citizenship Judge correctly applied the Re Pourghasemi test in determining that a shortfall of 771 days prevented a finding that 1,095 days of physical presence in Canada had been accumulated. 

29     As a result, the appeal must fail. There is no order as to costs.

JUDGMENT

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

ROY J.

Tuesday, July 29, 2014

SERGIO R. KARAS QUOTED IN NATIONAL POST FRONT PAGE STORY ON CITIZENSHIP RULING

I was quoted in today's national Post front page story on citizenship ruling.

http://news.nationalpost.com/2014/07/28/blatantly-lying-loses-family-its-citizenship-but-earns-them-a-63k-bill-from-canadian-government/

July 28, 2014

Blatant lying loses family its citizenship - but earns them a $63K bill from Canadian government

By Adrian Humphreys

It is a punishment historically associated with only the most egregious cases, usually accused Nazi war criminals who hid past when fleeing to Canada

Ottawa has stripped a Lebanese family of their Canadian citizenships - and handed them a $63,000 bill - after they were caught blatantly lying about living in Canada, part of a government crackdown on bogus citizens that could extend to thousands of cases.
The family - a father, mother and their two daughters - signed citizenship forms claiming they lived in Canada for almost all of the previous four years when they really lived in the United Arab Emirates, a fact even posted online in the daughters' public résumés on LinkedIn.
The bold nature of the fabrications - that successfully won them citizenship in 2008 and 2009 - and their attempts to fight Ottawa's decision brought rebuke from both the government and the Federal Court of Canada: not only have their citizenships been revoked, but they have been ordered to pay all of the government's $63,442 in legal bills.
It is a punishment historically associated with only the most egregious cases, usually accused Nazi war criminals who hid their involvement in atrocities when fleeing to Canada after the Second World War.
This case is only the beginning. The RCMP has targeted about 11,000 people from more than 100 countries suspected of fraud by misrepresenting their residency in Canada.
RCMP identified more than 3,000 citizens and 5,000 permanent residents under suspicion in ongoing large-scale fraud investigations. Most are residency claims like in this case.
After questions from officials, nearly 2,000 other people have withdrawn their applications, said Nancy Caron, spokeswoman for the Ministry of Citizenship and Immigration.
"Canadian citizenship is not for sale. The government of Canada is taking steps to revoke citizenship from those who have obtained it fraudulently by misrepresenting their residence in Canada while continuing to live abroad most, or all, of the time," said Ms. Caron.
"There is no statute of limitation on the revocation of citizenship."
The crackdown was announced by then minister Jason Kenney in 2012 and reiterated this year by current minister, Chris Alexander.
"My understanding is that the government didn't, in the past, go after cases like this in this way and now they are," said Robert Rastorp, a Toronto lawyer who represented the family in court.
"I think there is a strong political direction coming, ultimately from the minister's office, to pursue these cases very aggressively.
"I don't think this is the last case like this we are going to see."
'The government of Canada is taking steps to revoke citizenship from those who have obtained it fraudulently'
A spokesman for the Minister's office declined to comment on the case. A spokeswoman for the citizenship ministry confirmed the case stemmed from the 2012 crackdown that has been moving through the system.
The family arrived in Canada on Aug. 16, 2004. In 2008, each of the family members successfully applied for Canadian citizenship.
Boutros Naim Houchaime, the father, said he had lived in Canada every day for the four years prior to his application for citizenship, except for 15 trips totalling 307 days outside Canada.
Canada, however, after granting the family citizenship, revisited the case and made a diplomatic request to the United Arab Emirates for travel records on the family. (The UAE maintains strict entry and exit controls over residents who are non-citizens, court heard.)
"Mr. Houchaime was, in fact, spending the vast majority of his time living in Dubai during the relevant period, leaving the UAE only periodically for short trips abroad," Justice Anne Mactavish ruled.
Jacqueline El-Ksayer, the mother, claimed she was outside Canada only seven times for a total 133 days, during the past four years when, in fact, she left Canada a month after arriving in 2004, returning to Dubai where she remained almost exclusively except for a few short trips.
"Ms. El-Ksayer's travel history bears no relationship to the Canadian residence declared in her citizenship application," said Judge Mactavish.
Jennifer Hochaime, one of their daughters, claimed she left Canada only three times for a total of 134 days in four years.
According to UAE records, however, she actually returned to Dubai a month after coming to Canada in 2004.
She left Dubai for a couple of weeks each summer - consistent with someone attending school in Dubai. In fact, she was attending the Emirates Academy of Hospitality Management from 2004 to 2008, and for most of 2007 she was in Switzerland on an exchange program, court found.
The schools confirmed she was physically present at each institution during periods she claimed to be living in Canada.
'I think there is a strong political direction coming … I don't think this is the last case like this we are going to see'
Lynn Hochaime, another daughter, claimed to be away from Canada for only 87 days during the four year period when, like her mother and sister, she returned to Dubai on Sept. 7, 2004, and remained in Dubai for most of the next four years, with short trips out of the country, mostly in the summer.
She actually was attending high school at Al Mawakeb School in Dubai until her graduation in 2007 and, contrary to her claim she enrolled at McMaster University in Hamilton in 2006, she did not start at McMaster until 2008, court heard.
Even her online LinkedIn profile showed that.
The Minister of Citizenship and Immigration sought a declaration from the Federal Court that the family obtained their Canadian citizenship by false representations or fraud.
In making that declaration Judge Mactavish declared their applications contained "patently false information."
"Canadian citizenship is a valuable privilege," she said when ruling that the government was entitled to be paid its legal costs from the proceedings. The extent of the costs were accepted by the court this month.
The ruling and cost award is causing surprise in the legal community, said Sergio Karas, an immigration lawyer and analyst who is a former chair of the Ontario Bar Association's immigration section.
"I've never seen an award of costs like this in connection with a citizenship case. The court is trying to send a message to people who abuse the citizenship program," he said. At the same time, the government is paying more attention to bogus claims after several scandals, he said.
"People should really pay attention to this case and heed the warning it provides," said Mr. Karas.
The Federal Court does not actually strip citizenship, but assesses evidence and makes a finding on each case brought before it. The Governor in Council makes decisions on actual revocations.
National Post

Thursday, July 24, 2014

UNUSUAL ADULT ADOPTION CASE, CITIZENSHIP CLAIM DENIED

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)

Between
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.)



JUDGMENT AND REASONS
ST-LOUIS J.:--
I. INTRODUCTION
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.
II. CONTEXT: CANADIAN CITIZENSHIP AS AN ADULT ADOPTEE
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.
III. QUESTIONS
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? 
III. POSITION OF THE PARTIES AND ANALYSIS

·        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) 
Analysis 
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) 
Analysis 
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) 
Analysis 
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.
V. CONCLUSION
46     For the above reasons, Mr. Dubkov's application for judicial review is dismissed.
JUDGMENT
THIS COURT'S JUDGMENT is that:

·        1. 
This application for judicial review is dismissed. 

ST-LOUIS J.
Visalaw International CS CBA OBA-ABO AILA IPBA NYSRA ABA IBA