Date: 20030710
Docket: T-938-02
Citation: 2003 FC 858
Ottawa, Ontario, July 10, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE GAUTHIER
BETWEEN:
SAFIA ALOUACHE
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
(ii Ms. Alouache is appealing a decision by George Springate, a citizenship judge, on April 25, 2002, which dismissed her citizenship application because she did not provide satisfactory evidence of her being in Canada for at least 1,095 days in the four years preceding her application (s. 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 - "the Act").
Facts
(ii Ms. Alouache is 52 years old. She is an Algerian and obtained her permanent resident status in Canada on April 1, 1997. When she came to Canada she joined her immediate family, five brothers and sisters who are all Canadian citizens.
(ii She filed a citizenship application on June 21, 2001, and in her form indicated that since June 21, 1992, she had only been absent from Canada for vacations lasting a total of 152 days (visits to her aunt). She therefore submitted that she was in Canada for 1,308 days, that is 213 days more than the minimum required by the Act.
(ii Before arriving in Canada, and for over 25 years, Ms. Alouache taught Arabic in Algeria. As she was unable to find employment in Canada as a teacher, she spent most of her time looking after her elder brother's children and worked as a volunteer in the family business and at the Académie IBN SINA in Montréal.
(ii In April 2001 she received an offer of employment which would require her to live in Saudi Arabia for a time. However, to be eligible she had to be a Canadian citizen. She therefore requested an accelerated review of her application.
(ii To establish her presence in Canada, Ms. Alouache submitted the following documents to the citizenship judge:
(i) her most recent passport, explaining that she no longer had her old passport in her possession as she had given it back to the Algerian authorities when she renewed her passport in September 1999;
(ii) notices of assessment from the Department of National Revenue for 1998, 1999 and 2000;
(iii) a letter from the Académie IBN SINA in Montréal;
(iv) a certificate of residence signed by all her brothers and sisters;
(v) a letter from the Régie d'assurance-maladie;
(vi) a copy of several residential leases;
(vii) a letter from the family solicitor; and
(viii) a letter from the family physician.
Citizenship judge's decision
(ii Judge Springate indicated in his letter of refusal:
[TRANSLATION]
At the hearing I had doubts that you had actually lived in Canada and I asked you to provide additional documents. Finally, I examined the documents you submitted and in my opinion they are not satisfactory proof of your residence in the country. I therefore conclude that you do not meet the residence requirement as defined in s. 5(1)(c) of the Citizenship Act.
[Emphasis added.]
(ii The letter of April 25, 2002, contains no specific details relating to Ms. Alouache's application. In fact, it appeared from the record that this was a standard form letter referred to in a form as [TRANSLATION] "letter not approved, French, s. 5(1)(c), doubt regarding residence with documents".
(ii Accordingly, the Court must review Judge Springate's reasons to determine more specifically just why he said he was not satisfied with the evidence provided by Ms. Alouache.
(ii In this connection, Ms. Alouache referred the Court in particular to the following passage (page 3 of Judge Springate's reasons):
I met the applicant at her hearing. I have read the documents she submitted as proof of residence. My doubts remain. Indeed, it is not the sparce eivdence that was submitted that heightened my doubts. It is what was not submitted that does.
It is not clear whether the judge is referring here to the doubts he noted on page 1 of his reasons, when he said "I have serious doubts as to the veracity of her dates and figures", or whether he is answering the question he noted just before writing this paragraph, namely "Does the applicant seek to be a true Canadian or does she simply seek a flag or passport of convenience?"
(ii As well as these points, Judge Springate analyzed the evidence submitted. He noted inter alia:
(1) The applicant submitted leases. She is listed as a co-tenant. Yet, she submitted no rent receipts, no cancelled rent cheques to how her financial participation as co-tenant.
(2) Indeed, the applicant submitted no evidence whatsoever to show that, throughout her entire residence period, she had a Canadian bank account and/or credit card.
(3) Most telling is that, save the applicant's volunteer time at a local school for two months in 1999 (no dates and times submitted), she did not joint or become a member of any Canadian community organization, club, organization or group.
Points at issue
(ii Ms. Alouache submitted that Judge Springate imposed a heavier burden of proof upon her than a simple balance of probabilities and considered material that was extrinsic, such as her intention to reside in Canada after her citizenship application was reviewed.
(ii She further argued that the citizenship judge should have recommended an exemption on humanitarian grounds to the Minister. Ms. Alouache referred here to her status as a woman in Algeria.
Analysis
(ii The applicable standard of review has been indicated several times [see Canada (M.C.I.) v. Mindich (1999), 170 F.T.R. 148, para. 9, [1997] F.C.J. No. 978 (QL), Zhang v. M.C.I., 2001 FCT 501, [2001] F.C.J. No. 778 (QL), at para. 7; Canada v. Wu, 2002 FCT 579, [2002] F.C.J. 765 (QL)]. The Court must determine whether the citizenship judge correctly applied one of the accepted residence tests. However, in assessing the facts relating to the application, the Court must be careful not to substitute its own opinion for that of the citizenship judge, unless his decision is patently unreasonable, wrong or arbitrary.
(ii At the hearing the Court indicated to the parties that it was allowing the objection made by the defendant and that it did not intend to consider the new evidence submitted by Ms. Alouache in her sworn statement in support of this appeal.
(ii In practice, that disposes of the second ground of appeal since there is now in the record no evidence supporting the argument that the citizenship judge should have recommended an exemption on humanitarian grounds.
(ii Accordingly, the Court only has to analyze the argument that the citizenship judge misapplied the residence test (s. 5(1)(c) of the Act).
(ii The Court notes that Judge Springate did not indicate which residence test he applied. The letter of refusal appeared to indicate that he applied the test of physical presence, since he said he doubted that Ms. Alouache had [TRANSLATION] "actually lived in Canada". The defendant submitted that it was this test which he followed. Ms. Alouache claimed that this assumption does not stand up on reading the judge's reasons in the record.
(ii In Chahrour v. Canada (M.C.I.), 2002 FCT 745, [2002] F.C.J. 1011 (QL), Pinard J. said that, when the physical presence test is applied, bank statements, rental payments or the presence of other family members in Canada are not evidence relevant to establishing residence.
(ii It is clear, from extracts from the reasons in the record, that Judge Springate not only took such evidence into account, but was influenced by the absence of some of these indications such as rental receipts, a bank account or credit card, or even by the absence of participation in Canadian community organizations or other groups, and finally by the intention of going to work outside Canada.
(ii In the circumstances, the Court must conclude as Heneghan J. did in Hsu v. Canada (M.C.I.), 2001 FCT 579, [2001] F.C.J. 862 (QL), that Judge Springate confused or mixed up the various judicial trends in applying the residence test to the facts submitted by Ms. Alouache. This is a reviewable error.
(ii The Court also notes that, as in Melevsky v. M.C.I., 2002 FCT 1148, [2002] F.C.J. 1554 (QL), Judge Springate seems to have again required a higher burden of proof than the ordinary civil burden. The Act does not require that a plaintiff prove residence beyond all doubt.
(ii In view of the foregoing, there is no need to comment on the other arguments raised at the hearing. The appeal is allowed.
ORDER
THE COURT ORDERS:
1. The appeal from the citizenship judge's decision on April 25, 2003 is allowed;
2. The application is referred back for consideration by another citizenship judge.
|
|
"Johanne Gauthier"
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-938-02
STYLE OF CAUSE: Alouache v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 13, 2003
REASONS [for order or judgment]: Gauthier J.
DATE OF REASONS: July 10, 2003
APPEARANCES:
Paul Fréchette FOR THE PLAINTIFF
François Joyal FOR THE DEFENDANT
SOLICITORS OF RECORD:
Francischiello & Associés FOR THE PLAINTIFF
101 - 4570 Jean-Talon est
St-Léonard, Quebec H1S 1K2
Morris Rosenberg FOR THE DEFENDANT
Deputy Minister of Justice
Montréal, Quebec H2Z 1X4