Date: 20050407
Docket: T-1211-04
Citation: 2005 FC 461
BETWEEN:
ZAID LAMA
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
De MONTIGNY J.
[1] The applicant is appealing a decision of January 26, 2004, by Citizenship Judge Gilbert Decoste, who dismissed his citizenship application on the basis that he did not meet the residency requirements in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act). Specifically, the Citizenship Judge found that the applicant had failed to show he had centralized his mode of living in Canada.
[2] It should be mentioned that citizenship applications were also made by his father (docket T-1207-04), mother (docket T-1208-04) and sister (docket T-1210-04); their applications were dismissed by the same citizenship judge, and each of those decisions was appealed to this Court and heard on February 7 and 8, 2005. However, the applicant's mother withdrew her appeal at the hearing.
Context
[3] In his citizenship application form, the applicant stated that he came to Canada on December 14, 1998, and settled in Montreal to write his master's thesis for Harvard University. He subsequently obtained permanent resident status on November 22, 1999. He applied for Canadian citizenship on November 13, 2002.
[4] The applicant stated that he was absent from Canada for 294 days and present for 963 days, for a total of 1,257 days during the qualifying period defined by the Act. The applicant does not own any property in Canada and said he lived with his parents and sister in a building in Montreal.
Decision
[5] The Citizenship Judge dismissed Mr. Zaid Lama's application because he had doubts about the veracity of the applicant's statements and about the true number of days of absence from Canada. For greater ease of reference, the Citizenship Judge's analysis is reproduced below:
[TRANSLATION]
ANALYSIS:
After listening to the applicant and examining his statements as well as the documents produced, I have serious doubts about the veracity of his statements.
1. The applicant states in his application that he lived at 1625 Lincoln Apt 904 in Montreal from December 1998 to November 2002. In the residence questionnaire, he says he lived at the same address except that it was apartment 1602 for the period from November 14, 1998, to January 14, 1999, and apartment 904 for the period from January 15, 1999, to November 30, 2002.
2. The applicant's passport contains a stamp for entry into Canada dated December 14, 1998. There is a note in the record dated December 14, 1998, written by an immigration officer, indicating that the applicant apparently declared on entering Canada at that time: (a) that he was awaiting his Canadian permanent resident status; (b) that he had just completed his studies in the U.S.A.; (c) that he was coming to Canada to visit his sister for a few days; and (d) that he would be going home on December 18, 1998, and not coming back to Canada until he had his permanent resident status. In his letter of July 30, 2003, the applicant writes: "When I first arrived in Canada I rented an apartment from month to month until my parents prepared their apartment for me to move in". This statement contradicts the statement recorded by the Canadian immigration officer on December 14, 1998, because the applicant states in his application that he came to live in Canada on December 14, 1998.
3. The applicant says he had 4 brief stays in Boston, U.S.A., while working on his master's thesis. There is no U.S.A. stamp in the applicant's passport for those entry dates.
4. The applicant failed to declare a number of absences associated with dates stamped in his passport: August 1, 1999, July 1, 2002, two dates of entry to Jordan, November 18, 1999, to the U.S.A., November 22, 1999, to Canada. In addition, a number of dates of return to Canada that the applicant declared are not confirmed by stamps in his passport (July 18, 1999, May 18, June 16, October 16, 2000, June 1 and June 28, 2002).
[6] Based on this analysis, the Citizenship Judge found that the applicant did not meet the requirements of paragraph 5(1)(c) of the Act. He also felt it worth mentioning that the applicant had not declared all of his absences in his application, and that few documents were produced for the years 1999 and 2000.
Applicant's arguments
[7] At the hearing and in her factum, counsel for the applicant tried to explain the discrepancies identified by the Citizenship Judge regarding the applicant's place of residence in Montreal and his stays in the United States.
[8] It was argued that Canadian and U.S. authorities did not always stamp passports before September 11, 2001, and that the discrepancies in the dates resulted at times from some confusion in the passport between arrival and departure dates. The applicant added that the errors he made in relation to his absences were made in good faith.
[9] It was also argued that the Citizenship Judge erred in using notes taken by an immigration officer to assess the applicant's credibility, without telling the applicant he had this evidence in his possession and without affording the applicant an opportunity to explain the contradictions he had identified between the notes taken by the officer and the applicant's statements.
[10] The applicant also faulted the Citizenship Judge for finding that the documents produced were insufficient, when he had provided everything that had been asked of him and no other document had been required.
[11] Last, the applicant argued that the Citizenship Judge erred in imposing a burden of proof beyond reasonable doubt, rather than proof on the balance of probabilities.
Respondent's arguments
[12] The respondent began by arguing that the applicant's credibility was crucial, given the perception abroad that it is easy for a permanent resident to get Canadian citizenship and that all you have to do is provide fictitious addresses and fake identification. The Citizenship Judge thus rightly refused to apply the flexible interpretation of the term "residence" advocated in Re Koo, [1993] 1 F.C. 286, as the applicant's credibility was seriously undermined.
[13] Given the numerous inconsistencies and contradictions among the citizenship application, the residence questionnaire and the applicant's affidavit, and in view of the fact that it is impossible to ascertain which days the applicant was actually present in Canada, the Citizenship Judge was entitled to find that the applicant had not provided satisfactory evidence that he had centralized his mode of living in Canada.
[14] Consequently, the respondent argues that the applicant utterly failed to show that the Citizenship Judge erred in dismissing his citizenship application.
Applicable legislative provisions
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5. (1) The Minister shall grant citizenship to any person who
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5.(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
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| (c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner: |
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c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, 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 : |
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| (iii) 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 |
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(i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent; |
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| (iv) 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; |
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(ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent. |
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Analysis
[15] The sole issue raised by this appeal is whether the Citizenship Judge erred in finding that the applicant did not meet the residency requirements under the Act. More specifically, this Court must determine whether the Citizenship Judge correctly interpreted the "residency" requirement in light of the facts that were brought to his attention.
[16] To address this issue, this Court must first determine the applicable standard of review. In the past, some judges have been guided by the decision by Lutfy J. (as he then was) in Lam v. Canada (M.C.I.), [1999] F.C.J. No. 410, and held that the appropriate standard of review on appeal from a decision of a Citizenship Judge was correctness.
[17] More recently, a consensus seems to have emerged that the standard is reasonableness simpliciter (see, for example: Chen v. Canada (Minister of Citizenship and Immigration), 2004 FC 1693, [2004] F.C.J. No. 2069; Rasaei v. Canada (Minister of Citizenship and Immigration), 2004 FC 1688, [2004] F.C.J. No. 2051; Gunnarson v. Canada (Minister of Citizenship and Immigration), 2004 FC 1592, [2004] F.C.J. No. 1913; Canada (Minister of Citizenship and Immigration) v. Chen, 2004 FC 848, [2004] F.C.J. No. 1040; Canada (Minister of Citizenship and Immigration) v. Fu, 2004 FC 60, [2004] F.C.J. No. 88; Canada (Minister of Citizenship and Immigration) v. Chang, 2003 FC 1472, [2003] F.C.J. No. 1871; Canada (M.C.I.) v. Mueller, [2005] F.C. 227, [2005] F.C.J. No. 266).
[18] My colleague, Tremblay-Lamer J., justified this approach in the following terms:
In the case at bar, where the court must verify that the Citizenship Judge has applied one of the accepted residency tests to the facts it raises, in my view, a question of mixed fact and law (Director of Investigation and Research v. Southam Inc., [1997] 1 S.C.R. 748). Taking into account that some degree of deference is owed to the specialized knowledge and experience of the Citizenship Judge, I would conclude that the applicable standard of review is that of reasonableness simpliciter. (Canada (M.C.I.) v. Fu, [2004] F.C.J. No. 88, at para. 7).
[19] In view of the pragmatic and functional approach developed by the Supreme Court of Canada in such cases as Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, it is my opinion that this standard of review is indeed the most appropriate under the circumstances. Accordingly, deference should be shown if it has been established that the judge understood the case law and weighed the facts against the test set out in the Act.
[20] After carefully considering the Citizenship Judge's reasons, there is nothing to suggest that he erred in fact or in law in weighing the evidence before him and in applying the Act. Contrary to the applicant's claim, he did not impose an overly onerous burden of proof on the applicant, and his findings are entirely supported by the evidence before him.
[21] It is important to remember that since the new Federal Court Rules came into force in April 1998, an appeal under subsection 14(5) of the Act is no longer an appeal de novo and is therefore governed by rules 300 et seq. of the Rules. Accordingly, the only evidence that may be considered on appeal is the evidence that was before the Citizenship Judge: Canada (M.C.I.) v. Chan, [1998] F.C.J. No. 742; Canada (M.C.I.) v. Cheung, [1998] F.C.J. No. 813; Canada (M.C.I.) v. Tsang, [1999] F.C.J. No. 1210; Canada (M.C.I.) v. Hung, (1998), 47 Imm. L.R. 182.
[22] It would no doubt have been preferable for the Citizenship Judge to confront the applicant with the contradictions he found between the applicant's documents and the notes taken by the immigration officer when the applicant entered Canada on December 14, 1998. That would probably have made it possible to clarify the applicant's true intentions and to determine more precisely when the applicant established his residence in Canada, because, of course, before a residence can be maintained in Canada, it has to have been established.
[23] However, I do not consider this error critical. For one thing, it is hard to see how the applicant could actually have established himself in Canada before obtaining permanent resident status in November 1999, and for another, it appears he very rarely stayed in Canada between December 14, 1998, and November 22, 1999.
[24] Even assuming the applicant did establish himself in Canada on December 14, 1998, as he claims, he failed to establish on the balance of probabilities that he actually accumulated three years of residence in Canada within the four years immediately preceding his application, or that he centralized his mode of living in Canada.
[25] Given the numerous contradictions identified by the Citizenship Judge regarding the applicant's place of residence and entries into and exits from Canada, as well as the lack of tangible evidence to corroborate his residence in Canada in 1999 and 2000, it was open to the Citizenship Judge to find that the applicant was not credible.
[26] It is therefore my view that the Citizenship Judge was entitled to dispose of Mr. Zaid's application as he did, on the basis that the applicant had not centralized his mode of living in Canada and consequently did not meet the requirements of paragraph 5(1)(c) of the Act.
[27] I do not doubt that the applicant truly wishes to obtain Canadian citizenship. However, in my view, his application was premature, and the Citizenship Judge did not err in denying him citizenship, given the evidence that was before him. The applicant may make a new application at the appropriate time.
"Yves de Montigny"
Judge
Certified true translation
Peter Douglas
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1211-04
STYLE OF CAUSE: ZAID LAMA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: February 7, 2005
REASONS FOR ORDER: de Montigny J.
DATE OF ORDER: April 7, 2005
APPEARANCES:
Annie Kenane FOR THE APPLICANT
Alexandre Tavadian FOR THE RESPONDENT
SOLICITORS OF RECORD:
Étude Kenane
Montreal, Quebec FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT