Federal Court Decisions

Date: 20051202

Docket: T-1084-05

Citation: 2005 FC 1641

Ottawa, Ontario, December 2, 2005

PRESENT:    THE HONOURABLE MR. JUSTICE BLAIS

BETWEEN:

SYED MUHAMMAD-RAZA RIZVI and

FIZZA HAIDER

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review under section 21 of the Federal Courts Act R.S. 1985, c. F-7 and subsection 14(5) of the Citizenship Act R.S. 1985, c. C-29 (the Act)of a decision of Citizenship Judge, Janice Laking (the citizenship judge) dated April 27, 2005, dismissing the Canadian citizenship applications of Syed Muhammad-Raza Rizvi and Fizza Haider (the applicants).

RELEVANT FACTS

[2]                 The applicants are landed immigrants and spouses of one another. They both applied for Canadian citizenship on October 3, 2003.

[3]                 The applicants hearing in respect of their applications for Canadian citizenship took place on December 3, 2004, in Toronto, before the citizenship judge. By way of letters dated April 27, 2005, the citizenship judge refused the applicants' applications.

CITIZENSHIP JUDGE'S DECISION

[4]                 The citizenship judge did not approve the applicants' citizenship applications because they did not meet the residence requirement pursuant to paragraph 5(1)(c) of the Act. That is, they did not accumulate at least three years (1,095 days) of residence within the four years (1,460 days) immediately preceding the date of their applications.

ISSUES

1. Did the citizenship judge breach subsection 14(2) of the Act?

2. Did the citizenship judge err in concluding that theapplicants did not meet the residency requirement under paragraph 5(1)(c) of the Act?

ANALYSIS

[5]                 In the present matter, which is an appeal of a citizenship judge's decision, I am satisfied that the standard of review is reasonableness simpliciter. In Wang v. Canada(Minister of Citizenship and Immigration), 2005 FC 981, [2005] F.C.J. No. 1204, Justice Gibson adopts the words of our colleague Justice Shore in Morales v. Canada (Minister of Citizenship and Immigration), 2005 FC 778, [2005] F.C.J. No. 982, where he wrote at paragraph 6:

The standard of review in citizenship appeals is the standard of reasonableness simpliciter because the question of whether a person has met the residency requirement under the Act is a question of mixed fact and law and citizenship judges are owed some deference by virtue of their special degree of knowledge and experience (Canada (Minister of Citizenship and Immigration) v. Fu, [2004] F.C.J. No. 88 (F.C.) (QL), Canada (Minister of Citizenship and Immigration) v. Chen, [2004] F.C.J. No. 1040 (F.C.) (QL), Canada(Minister of Citizenship and Immigration) v. Chang, [2003] F.C.J. No. 1871 (F.C.) (QL)).   

1. Did the citizenship judge breach subsection 14(2) of the Act?

[6]                 The applicants assert that the citizenship judge made a determination, at the conclusion of the hearing on December 3, 2004, that they did in fact satisfy the requirements prescribed by the Act regarding their physical presence in Canada. As such, the citizenship judge was in breach of subsection 14(2) of the Act by failing to approve each applicant's application for Canadian citizenship in accordance with the determination she made at the conclusion of the hearing. Subsection 14(2) of the Act states the following:

[7]                 The applicants both state in their affidavits: "In light of the successful interview with the Judge as I described above, I am surprised and disappointed that my application for citizenship was not approved. I have complied in a timely manner with the request for supporting documentation as required by the Judge."

[8]                 However, as pointed out by the respondent, upon cross-examination, both the applicants conceded that their affidavit statements regarding the "successful" nature of their interviews were opinions rather than fact. (See transcript of cross-examination record of Syed Muhammad-Raza Rizvi at questions 22-25, respondent's record at pages 6-8 and transcript of cross-examination record of Fizza Haider at questions 17-21, respondent's record at pages 50-51.)

[9]                 I agree with the respondent's submission that the citizenship judge was evidently not satisfied with the applicants' applications at the end of their hearings, as she requested additional documents from both of them. Once these documents had been submitted on December 29, 2004, the citizenship judge made a further request for specific documents on February 20, 2005. I am satisfied that the evidence illustrates that the citizenship judge had not made a determination at the conclusion of the hearing regarding the physical presence of the applicants in Canada. As such, the citizenship judge was not in breach of subsection 14(2) of the Act by failing to approve each applicant's application for Canadian citizenship.

2. Did the citizenship judge err in concluding that theapplicants did not meet

    the residency requirements under paragraph 5(1)(c) of the Act?

[10]            Section 5 of the Act outlines the conditions the applicants must meet in order to receive Canadian citizenship. Paragraph 5(1)(c) of the Act indicates that one of those conditions is to accumulate at least three years residency in Canada:

[11]            The jurisprudence allows for different interpretations of the concept of residency in light of the fact that there is no definition of the term in the Act. As mentioned by Justice De Montigny at paragraphs 15 and 16 of Xu v. Canada(Minister of Citizenship and Immigration), 2005 FC 700, [2005] F.C.J. No. 868 :

Parliament made it clear that an applicant for citizenship must have accumulated "at least" three years of residence within the four years immediately preceding the date of his application. As for the notion of "residence", it is not specifically defined under s. 2(1) of the Citizenship Act. But it is certainly fair to say that the allowance for one year's absence during the four-year period under s. 5(1)(c) of the Act creates a strong inference that the presence in Canada during the other three years must be substantial. As Mr. Justice Muldoon stated in Re Pourghasemi, [1993] F.C.J. No. 232:

It is clear that the purpose of para. 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsory presented with the everyday opportunity to become, 'Canadianized'.

(...)

So those who 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.

It is true that this Court has interpreted the test for residency in a number of different ways. As a result, it has also been determined that a Citizenship Judge is entitled to adopt any of these various approaches in determining whether a particular applicant has satisfied the residency requirements of the Act (Canada v. Mindich, [1999] F.C.J. No. 978; Akan v. M.C.I., [1999] F.C.J. No. 991; Lam v. M.C.I., [1999] F.C.J. No. 410).

[12]            It is the prerogative of the citizenship judge to adopt the approach he or she sees as appropriate in determining whether a particular applicant has satisfied the residency requirements of the Act. With this being said, the jurisprudence has created a strong inference that the presence in Canada during three out of the four year period pursuant to paragraph 5(1)(c) of the Act must be substantial. In the present matter, the citizenship judge chose a strict interpretation of residency, that is, the requirement of an individual to physically be present in Canada for at least a total of 1,095 days out of a possible 1,460 days preceding the date of application for Canadian citizenship:

Before approving an application for a grant of citizenship made under subsection 5(1) of the Act, I must determine whether you meet the requirements of this Act and the regulations, including the requirement set out in paragraph 5(1)(c) to have accumulated at least three years (1,095 days) of residence within the four years (1,460) immediately preceding the date of your application. "At least three years" does not mean less time; it means not fewer than three years.

                        [...]

There is Federal Court jurisprudence which does not require physical presence of the applicant for citizenship for the entire 1,095 days, when there are special or exceptional circumstances. However, in my view, too long an absence from Canada, albeit temporary, during the minimum period of time set out in the Act, as in the present case, i[s] contrary to the purpose of the residency requirements of the Act.

(Decision of citizenship judge dated April 27, 2005, page 3)

[13]            The citizenship judge analyzed the evidence regarding the applicants' citizenship applications and concluded that they did not satisfy the physical presence requirements of the Act. The citizenship judge had a significant amount of convincing evidence before her to come to such a conclusion. The male applicant did not provide complete tax returns,T4s or pay stubs with his application, as requested by the citizenship judge. He had no record of health card use from August 2001 to June 2002 and nothing after June 2002, and his bank statements also contained significant gaps, as well as several deposits in U.S. funds. Further, he stated that he was in Pakistan from October 2000 to February 2001. Based on all the evidence regarding the male applicant, the citizenship judge's conclusion that he did not satisfy the residency requirements of the Act is reasonable.

[14]            The evidence with respect to the female applicant was equally convincing. She failed to submit a passport covering the period between November 15, 2002 and December 2003. She also returned to Pakistan from August 2000 to February 2001, which was contrary to her statement of living in Windsor for a year and a half before moving to Toronto in June 2001 (see decision of citizenship judge, dated April 27, 2005 at page 1). Further, the female applicant's health records show no use from July 5, 2000 to November 2001, as well as nothing after June 2002 to the time of the citizenship application. The citizenship judge's decision was reasonable in concluding that the female applicant did not meet the resident requirements as stated in the Act.

[15]            The applicant submits that the citizenship judge erred in fact by stating that the female applicant had no record of health card use from July 2000 to November 2001 when in fact her daughter was born on July 4, 2000 in Toronto. I find that the citizenship judge did err in fact, however, such an error must be deemed minor in nature. Whether the citizenship judge would have said that there was no health card use from the end of July 2000, as oppose to just July 2000, is inconsequential in the present matter. The fact still remains that there was no record of health card use for an extended period of time.

[16]            The applicants submit that the citizenship judge erred in law when she pointed out that each applicant did not have a record of health card use after June 2002. The applicants claim that the citizenship judge asked to see the health card records for the period of February 21, 2000 to mid 2002. As such the applicants requested the records until June 21, 2002 in order to comply with the citizenship judge's request. The applicants claim the citizenship judge is estopped from relying upon the period of February 21, 2000, to mid 2002 in which she based her denial of the application.

[17]            I agree with the respondent's position in refuting the fact that the citizenship judge was estopped. Even if the applicants' interpretation of the request for the health records is acceptable, it would certainly not estop the citizenship judge from relying on the health records for the period of February 21, 2000 to mid 2002. The disclosed health records covered the period of February 2000 to June 2002 and showed no health card use whatsoever for the female applicant from the end of July 2000 to November 2001. The lack of health card use over the aforementioned period of 16 months is contrary to the female applicant's repeated assertions of health card use for that period of time at the cross-examination. It was reasonable for the citizenship judge to rely on the health card records and to draw a negative inference based on the information they contained.

[18]            The applicants claim that when the calculation of time by the citizenship judge is unclear and there is a live issue as to the actual number of days an applicant is absent from Canada, the application must be remitted back to a different citizenship judge for redetermination. The applicants claim that the aforementioned position was the one taken by Justice O'Keefe in Shakoor v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 972.

[19]            I disagree with the applicants' position and the jurisprudence cited to justify it. In Shakoor (supra),Justice O'Keefe was referring to whether it was unclear that the citizenship judge took into consideration absences from Canada after the date of application for Canadian citizenship in determining the applicants days of residency. In such a case, the decision must be referred back for redetermination because the citizenship judge can take into consideration only absences occurring prior to an application for citizenship:

It is a requirement of the Citizenship Act, supra, that an applicant for citizenship must have, in the four years immediately preceding the date of his or her application for citizenship, accumulated at least three years (1,095 days) of residence in Canada. In the present case, the applicant claimed to have spent 1,295 days in Canada in the relevant period prior to the date of his application. It is only the days spent outside of Canada prior to the date of the applicant's application for citizenship which was February 14, 2003, which can be considered in assessing the applicant's application for citizenship.

[...]

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.

[20]            In the present case, the citizenship judge did not include absences from Canada after the applications for citizenship in her days of residency calculations. As such, there is no need to remit the decision back to a different citizenship judge for redetermination.

[21]            In the present matter, the onus was on the applicants to satisfy the citizenship judge that they fulfilled the requirements of paragraph 5(1)(c) of the Act (Saqer c. Canada(Ministre de la Citoyenneté et de l'Immigration), 2005, CF 1392, [2005] A.C.F. no 1704, at paragraph 20). However, the applicants have not shown that the citizenship judge committed any error in finding that they did not conform to the physical presence requirements of the Act.

[22]            After reviewing all the evidence, I conclude that the applicants failed to demonstrate that the citizenship judge made an error that could justify the intervention of this Court.

ORDER

THIS COURT ORDERS THAT:

The application for judicial review be dismissed.

"Pierre Blais"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-1084-05

STYLE OF CAUSE:                         Syed Muhammad-Raza Rizvi and Fizza Haider v. The Minister of Citizenship and Immigration

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                       November 29, 2005

REASONS FOR ORDER:              BLAIS J.

DATED:                                              December 2, 2005

APPEARANCES:

Karen Kwan Anderson	FOR THE APPLICANTS
Benard Assan	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Karen Kwan Anderson Pace Law Firm Toronto, Ontario	FOR THE APPLICANTS
John H. Sims, Q.C. Deputy Attorney General Toronto, Ontario	FOR THE RESPONDENT