Canada (Minister of Citizenship and Immigration) v.
Pereira
Between
The Minister of Citizenship and Immigration, Applicant, and
Ilda Rosa Moniz Pereira, Respondent
The Minister of Citizenship and Immigration, Applicant, and
Ilda Rosa Moniz Pereira, Respondent
[2014] F.C.J. No. 604
2014 FC 574
Docket: T-1893-13
Federal Court
Toronto, Ontario
LeBlanc J.
Heard: June 3, 2014.
Judgment: June 17, 2014.
Docket: T-1893-13
Federal Court
Toronto, Ontario
LeBlanc J.
Heard: June 3, 2014.
Judgment: June 17, 2014.
(34 paras.)
JUDGMENT AND REASONS
1 LEBLANC
J.:-- This is an appeal under subsection 14(5) of the Citizenship
Act, RSC 1985, c C-29 (the Act) and section 21 of the Federal Courts Act, RSC 1985, c F-7, of a
decision of a citizenship judge dated September 25, 2013, granting the
respondent's citizenship application under paragraph 5(1) of the Act.
2 For
the reasons that follow, the appeal is granted.
I. Background
3 The
respondent was born in Portugal in 1984. She immigrated to Canada with her
parents when she was six years old. She holds the status of permanent resident
since then. On September 9, 2009, she applied for Canadian citizenship. She
then reported having been physically present in Canada for the whole four year
period immediately preceding the filing of the application (the Reference
Period), except for a total of 28 days where she stated having been outside
Canada for two business trips and two vacation trips.
4 In
the course of the processing of her citizenship application by citizenship
authorities, the respondent was required to provide a Residence Questionnaire,
which she did in May of 2012. In that questionnaire, she listed the four trips
she had reported on her citizenship application but without being able, this
time, to provide the dates of those trips abroad. She also listed her
employment and education history from June 2005 and her various places of
residence in Canada from 1991.
5 In
the course of the same process, the respondent was asked to produce an
Integrated Customs Enforcement System report (ICES), a document issued by the
Canada Border Services Agency, tracking her departures from and arrivals to
Canada, as well as her Ontario Health Insurance Plan (OHIP) personal claim
history. Her OHIP history showed 13 claims over the four year Reference period.
6 However,
her ICES report showed six entries that were not declared on either her
citizenship application or Residence Questionnaire. The respondent was also
requested, but was enabled, to produce her passport for the Reference Period.
In a letter to the citizenship authorities dated June 5, 2012, she explained
that when she renewed her expired passport in 2009, the staff of the Portuguese
consulate in Toronto, where she made that request, retained that passport and
subsequently destroyed it.
7 On
September 25, 2103, the respondent attended a hearing before the citizenship
judge and on that same day, her citizenship application was approved by the
judge.
8 In
a fairly short decision, the citizenship judge first noted that the respondent
had declared 1432 days of physical presence in Canada during the Reference
Period but that there was no passport available to verify that assertion, as
her old passport had been repossessed by the Portuguese consular authorities
when she applied for a new one.
9 He
also noted that the respondent's ICES report showed more entry stamps than
those she had reported to the citizenship authorities and that her
justification for those "mistakes" was that 'she didn't have a
passport available and her memory, of course, failed her'. On this particular
issue, the citizenship judge noted the respondent's statement that it was
'entirely possible that she made a few more trips, all business related and
very short, outside Canada'.
10 Finally,
the judge wrote that the respondent had a full-time job, was married, had been
educated and had all her social activities in Canada.
11 The
citizenship judge then approved the respondent's citizenship application in the
following terms:
· "Considering all of the above, and based on my careful
assessment of the applicant's testimony, as well as my consideration of the
information and evidence before me, I am satisfied that the applicant is
actually living and has been physically present in Canada on the number of days
sufficient to comply with the Citizenship Act.
· For all of the above I approve the application for citizenship of MS.
PEREIRA."
II. The Act's Residency requirement
12 Paragraph
5(1)(c) of the Act, which
provides for the residency requirement citizenship applicants need to meet in
order to be successful, reads as follows:
The Minister shall grant
citizenship to any
(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:
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
for every day during
which the person was resident in Canada after his lawful admission to Canada
for permanent residence the person shall be deemed to have accumulated one day
of residence;
...
* * *
· 5. (1) Le ministre attribue la citoyenneté à
toute personne qui, à la fois:
en fait la
demande;
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:
un demi-jour pour chaque
jour de résidence au Canada avant son admission à titre de résident
permanent,
un jour pour chaque jour
de résidence au Canada après son admission à titre de résident permanent;
[...]
13 For
quite some time, there has been an ongoing debate within this Court as to what
paragraph 5(1)(c) of the Act
exactly means. Competing jurisprudential schools have emerged from that debate
with the result that three different tests are available to citizenship judges
in assessing the residency requirement in any given case (Sinanan v Canada (Minister of Citizenship and Immigration) 2011 FC 1347 at paras 6 to 8, [2011] F.C.J. No. 1646 (QL); Huang v Canada (Minister of Citizenship and Immigration) 2013 FC 576 at paras 17 and 18, [2013] F.C.J. No. 629 (QL)).
14 The
first test involves strict counting of days of physical presence in Canada
which must total 1095 days in the four years preceding the application. It is
often referred to as the quantitative test or the Pourghasemi test (Pourghasemi (Re) (FCTD) [1993] 62 FTR 122). The second is a less stringent test which
recognizes that a person can be resident in Canada, even while temporarily
absent, if there remains a strong attachment to Canada. This test is generally
known as the Re Papadogiorgakis
test (Re Papadogiorgakis, [1978]
2 FC 208 (QL), 88 DLR (3d) 243 (TD)). Finally, the third test builds on the
second one by defining residence as the place where one has centralized his or
her mode of living. It is described in the jurisprudence as the Koo test (Re Koo (1992), [1993] 1 FC 286 (QL), [1992] F.C.J. No. 1107 (TD); see also Paez v Canada (Minister of Citizenship and Immigration) 2008 FC 204 at para 13, [2008] F.C.J. No. 292 (QL); Sinanan, above at paras 6 to 8; Huang, above at paras 37 to 40). The last two
tests are often referred to as qualitative tests (Huang, above at para 17).
15 The
dominant view in this Court's jurisprudence is that citizenship judges are
entitled to choose which test they desire to use among these three tests and
that they cannot be faulted for choosing one over the other (Pourzand v Canada (Minister of Citizenship and Immigration)2008 FC 395 at para 16, [2008] F.C.J. No. 485 (QL); Xu v Canada (Minister of Citizenship and Immigration) 2005 FC 700 at paras 15 and 16, [2005] F.C.J. No. 868 (QL); Rizvi v Canada (Minister of Citizenship and Immigration) 2005 FC 1641 at para 12, [2005] F.C.J. No. 2029 (QL)).
16 They
can be faulted however if they fail to articulate which residency test was
applied in a given case (Dina v Canada (Minister of
Citizenship and Immigration) 2013 FC 712 at para 8,
[2013] F.C.J. No. 758 (QL)).
III. Issue and Standard of Review
17 The
Minister of Citizenship and Immigration (the applicant) claims that the
citizenship judge's decision approving the respondent's citizenship application
is unreasonable in three ways. First, he says that the citizenship judge failed
to identify the legal test he used to assess whether the respondent met the
Act's residency requirement. Secondly, he contends that the judge's reasons and
analysis are wholly inadequate in that they do not sufficiently explain on what
grounds the respondent's citizenship application was approved. Finally, he
argues that it was unreasonable for the citizenship judge to approve the
respondent's application for citizenship given the paucity of, and the
inconsistencies in, her evidence on the residency requirement.
18 Both
the applicant and the respondent submit that the standard of review applicable
to these issues is that of reasonableness. The Court agrees. It is indeed
generally accepted in this Court's jurisprudence that a citizenship judge's
consideration of the residency requirement under paragraph 5(1)(c) of the Act, whichever the test used by the
judge, is a matter of mixed facts and law and is thus reviewable on a standard
of reasonableness (Saad v Canada (Minister of
Citizenship and Immigration), 2013 FC 570 at para 18,
[2013] F.C.J. No. 590 (QL); Canada (Minister of
Citizenship and Immigration) v Rahman, 2013 FC 1274 at
para 13, [2013] F.C.J. No. 1394 (QL); Balta v Canada
(Minister of Citizenship and Immigration), 2011 FC 1509
at para 5, [2011] F.C.J. No. 1830 (QL); Canada (Minister
of Citizenship and Immigration) v Baron, 2011 FC 480 at
para 9, [2011] F.C.J. No. 735 (QL); Canada (Minister of
Citizenship and Immigration) v Diallo, 2012 FC 1537 at
para 13, [2012] F.C.J. No. 1615 (QL); Huang, above at paras 24 to 26).
19 This
means, as is well known, that the Court's review analysis is concerned with the
existence of justification, transparency and intelligibility within the
decision-making process and also with whether the decision falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and the law (Dunsmuir v New Brunswick,2008 SCC 9 at para 47, [2008] 1 SCR 190).
IV. Analysis
20 This
case can be entirely resolved on the applicant's third ground of appeal.
Indeed, even assuming that the citizenship judge clearly identified the
residency test he applied to the facts of this case, which I believe he did in
any event, and irrespective of the quality of his reasons for the decision, the
respondent, in my view, failed to establish, with sufficient and credible
evidence, that she met the Act's residency requirement. The citizenship judge's
conclusion to the contrary was, in the circumstances of this case, an unreasonable
outcome.
21 As
it has been affirmed on many occasions by this Court, Canadian citizenship is a
privilege that ought not to be granted lightly and the onus is on citizenship
applicants to establish, on a standard of balance of probabilities, through sufficient,
consistent and credible evidence, that they meet the various statutory
requirements in order to be granted that privilege (Canada
(Minister of Citizenship and Immigration) v Elzubair,
2010 FC 298 at paras 19 and 21; Canada (Minister of
Citizenship and Immigration) v El Bousserghini, 2012 FC
88 at para 19; Canada (Minister of Citizenship and
Immigration) v Dhaliwal, 2008, FC
797 at para 26; Abbas v Canada (Minister of Citizenship and Immigration),2011 FC 145 at para 8; F.H. v McDougall, 2008 SCC 53, [2008] 3 SCR 41).
22 The
Court is mindful that this burden ought not to be excessive and that although
citizenship is a privilege, the Act does not require corroboration on all
counts (El Bousserghini, above at
para 19). The Court is also mindful in this regard that it is up to the
citizenship judge, taking the context into consideration, to determine the
extent and nature of the evidence required in any given case (El Bousserghini, above at para 19).
23 There
is however a point beyond which this exercise of discretion, or lack of it, on
the part of the citizenship judge cannot be held to be reasonable. This point
was reached here when the citizenship judge, who was already deprived of the
benefit of the expired passport to verify the respondent's number and length of
absences from Canada during the Reference Period, accepted the respondent's
rather weak and unconceivable explanation on her unreported absences and did it
without inquiring further into these absences.
24 I
agree with the applicant that at that point the citizenship judge abdicated his
responsibilities.
25 It
is indeed one thing for a citizenship applicant to have no supporting evidence,
in the form of an expired passport, of the number and length of his or her
absences from Canada during the relevant assessment residency period. This is
not fatal to the applicant if a reasonable explanation can be provided as to
the unavailability of the passport (ElBousserghini, above at para 19). However, it is quite another thing, as is the
case here, not to have that kind of supporting evidence and, in addition, to
grossly misrepresent to the citizenship authorities the number of absences from
Canada and have no reasonable explanation for that.
26 Here,
the respondent justified the fact her ICES report showed more entry stamps than
those she had reported to the citizenship authorities by saying that her memory
had failed her. The citizenship judge accepted those explanations.
27 The
problem is that this discrepancy accounted for 6 of the 10 trips the respondent
made abroad during the Reference Period. This amounted to more than one half of
her absences from Canada during that time. This is not insignificant. But more
importantly, it is hardly conceivable that someone's memory would fail him or
her to such a degree. What is particularly inconceivable is that while the
respondent could not remember this significant number of trips abroad, she was
apparently able to remember that they were all short trips.
28 This
whole story was, on its face, hardly credible. In any event, it showed on the
part of the respondent a degree of carelessness which is incompatible with the
spirit of the Act and the very nature and purpose of the naturalization
process. In accepting that story as sufficient justification for this major
discrepancy in the respondent's citizenship record and in relying on her
testimony to establish residency, without requiring any form of corroboration
in a context where the record showed strong indications of material omissions,
the citizenship judge sent the wrong message. He abdicated his responsibilities
and discredited the whole process. He basically gave 'carte blanche' to the
respondent and, by doing so, significantly altered the onus citizenship
applicants bear in establishing that they qualify for a grant of Canadian
citizenship.
29 In
such a context, the citizenship judge had no other choice, in the Court's view,
but to either dismiss the respondent's application as being unsubstantiated for
lack of sufficient, consistent and credible evidence (Abbas, above at para 8), or inquire further into its deficiencies before
making a decision. Neither was done. This was an unreasonable outcome on the
face of the record and of the law, which requires a more rigorous approach to
the assessment of citizenship applications (Elzubair, above at para 21; Dhaliwal, above at para 26).
30 The
respondent's main argument is that there is a presumption that her testimony
was truthful. Like most presumptions, this presumption will only operate to a
certain degree. Here, with the omissions and contradictions as to the number of
trips abroad, the weak and fainted justification for those omissions and
contradictions and the lack of corroborative evidence, there is simply no room
for that presumption to apply (Canada (Minister of
Employment and Immigration) v Dan-Ash, (FCA) [1988]
F.C.J. No. 571 (QL); Bakare v Canada (Minister of
Employment and Immigration), [1994] F.C.J. No. 31 (QL); Adu v Canada (Minister of Employment and Immigration), (FCA) [1995] F.C.J. No. 114 (QL); Diadama v
Canada (Minister of Citizenship and Immigration), 2006
FC 1206, [2006] F.C.J. No. 1518 (QL); Kahiga v Canada
(Minister of Citizenship and Immigration), 2005 FC 1240
at para 10, [2005] F.C.J. No. 1538 (QL); Oppong v Canada
(Minister of Citizenship and Immigration), [1995] F.C.J.
No. 1187 at para. 5 (QL)).
31 As
Mr. Justice Harrington pointed out in El Bousserghini, above at para 19, it would be extremely unusual and perhaps
reckless to rely on the testimony of an individual to establish his residency,
with no supporting documentation. In the context of the present case, where, as
indicated above, there was not only an old passport availability issue, but
also, unlike in El Bousserghini,
an issue of undeclared absences from Canada, it was reckless to rely solely on
the respondent's testimony to establish her residency.
32 Here,
there was nothing on record allowing the citizenship judge to measure the
impact of the undeclared absences on the number of days the respondent was
required to be physically present in Canada during the Reference Period. As the
citizenship judge clearly appears to have applied the physical presence
residency test to the respondent's case, this issue became of central
importance but it was not treated by the citizenship judge in a way that meets
the standard of reasonableness.
33 As
a result, the applicant's appeal is granted and the citizenship judge's
decision, quashed. As the applicant did not seek costs, none will be awarded.
34 As
the law stands now, the respondent is at liberty to re-apply for citizenship at
the moment of her choosing. If she does, this will hopefully be done in a way
which is respectful of the Act's spirit and of the nature and importance of the
naturalization process.
JUDGMENT
THIS COURT'S JUDGMENT is that the appeal is granted, without costs.
LEBLANC J.
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