MANIJEH KOHESTANI Applicant v. THE MINISTER OF CITIZENSHIP, 2012 FC 373

Date: 20120329 Docket: T-796-11 Citation: 2012 FC 373 Ottawa, Ontario , March 29, 2012 PRESENT: The Honourable Mr. Justice Near BETWEEN: MANIJEH KOHESTANI Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an appeal of the decision of a Citizenship Judge under subsection 14(5) of the Citizenship Act , RSC 1985, c C-29 (the Act). Manijeh Kohestani contests the denial of her citizenship application in a letter dated April 19, 2011 on the grounds that she failed to disclose multiple trips and this affected her credibility and declarations.

Her appeal was heard at the same time as that of her husband, Gholamali Navidi (Court File T-795-11). [ 2 ] For the following reasons, the appeal is dismissed. I. Facts [ 3 ] The Applicant is an Iranian national. On May 5, 2005, she was granted permanent residence in Canada as an accompanying dependant of her husband, who immigrated to the country as part of the Federal Investors Program. [ 4 ] On March 23, 2009, she applied for Canadian citizenship. The relevant residency period was from May 5, 2005 to March 23, 2009.

She declared a total of 117 days of absences from Canada for a claimed physical presence of 1,300 days. [ 5 ] On September 13, 2010, she appeared before a Citizenship Judge. Since the documents submitted to that date had not assisted in proving physical presence, she was given the opportunity to provide additional information in support of her claim, including ICES Traveller History and Banking Records.

[ 6 ] On October 6, 2010, the Citizenship Judge received a package containing the requested documents. II. Citizenship Determination [ 7 ] In summarizing the evidence presented by the Applicant, the Citizenship Judge referred to the package of additional documents. While it contained both requested documents, neither assisted the Applicant in establishing her physical presence. [ 8 ] The ICES Traveller History for March 1, 2005 to present revealed multiple undeclared travel dates in the period under review.

The Citizenship Judge stated that “[t]he failure to declare all these trips on both application for citizenship, and Residence Questionnaire has done irreparable harm to your credibility and hence, your declarations.” [ 9 ] The banking information related to a joint account with her husband and his sister.

Those records did not identify the person activating the account or performing the transactions to prove physical presence. [ 10 ] The Citizenship Judge therefore concluded: After a thorough review of the provided documentation, and in light of your failure to disclose multiple trips (absences) during the period under review, which corresponds with the several long periods of inactivity on your Ministry of Health and Long Term Care Payment

Summary, your claim of 117 days of total absences from Canada is not accurate, nor could your other claims be proven and substantiated. Therefore, on the balance of probabilities, I am not convinced you have the necessary 1, 095 days of physical presence and I am not satisfied you meet the residence requirements under paragraph 5(1)(

c) Residence of the Act. III. Issues [ 11 ] The issues raised by the Applicant can be addressed as follows: (

a) Did the Citizenship Judge err in finding that the Applicant did not meet the residency requirement under subsection 5(1) (

c) of the Act ? (

b) Was the Applicant denied procedural fairness or natural justice? IV. Standard of Review [ 12 ] A Citizenship Judge’s determination as to residency is reviewable on a standard of reasonableness ( Pourzand v Canada (Minister of Citizenship and Immigration) , 2008 FC 395 , [2008] FCJ no 485 at para 19 ).

This Court should only intervene where the decision fails to demonstrate “the existence of justification, transparency and intelligibility” and does not fall “within a range of possible, acceptable outcomes” ( Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 at para 47 ). [ 13 ] Issues of procedural fairness and natural justice require the correctness standard ( Canada (Minister of Citizenship and Immigration) v Khosa , 2009 SCC 12 , [2009] 1 SCR 339 at para 43 ). V. Analysis A. Residency Requirement

[14] The Applicant’s principal argument is that the Citizenship Judge failed to properly apply the residency test to the facts asprescribed in Canada (Minister of Citizenship and Immigration) v Takla, 2009 FC 1120, [2009] FCJ no 1371. As will become clear,there is no relevance to that argument in the case at bar. [15] Subsection 5(1)(

c) of the Act establishes the residency requirement. Citizenship will be granted where, according to theprescribed formula, an applicant “within the four years immediately preceding the date of his or her application, accumulated at leastthree years of residence in Canada.” [16] The term “residence” has been interpreted in various ways. Justice Francis Muldoon favoured a strict physical presence test inRe Pourghasemi (1993), 62 FTR 122, 19 Imm LR (2d) 259.

By contrast, Justice Barbara Reed established a series of six qualitativefactors to determine where an applicant “regularly, normally or customarily lives” in Re Koo (1992), (FC), 59FTR 27, [1993] 1 FC 286. [17] This Court continues to engage in some debate as to whether one test is more appropriate.

Most recently, while Justice RobertMainville in the decision in Takla, as raised by the Applicant above, endorsed the qualitative approach in Re Koo; Justice Donald Rennieargued that the strict physical presence approach in Re Pourgahsemi was more reflective of legislative intent in Martinez-Caro v Canada(Minister of Citizenship and Immigration), 2011 FC 640, [2011] FCJ no 881. [18] As stressed in Lam v Canada (Minister of Citizenship and Immigration) (1999), (FC), 164 FTR 177,[1999] FCJ no 410, it remains open to citizenship judges to adopt either test. [19] In my view, Parliament’s intention was to require the physical presence of an applicant in the period set out in the statute.

TheCourt has over the years added various different tests or nuances. The Applicant is asking the Court to adopt the attempt by JusticeMainville in Takla, above to consolidate these various tests as the sole test for compliance with subsection 5(1)(c). [20] However, despite the laudable goal of having one uniform test for citizenship it would be illogical in my view to prevent acitizenship judge from utilizing the test most clearly intended by Parliament in order to achieve this goal.

Thus, where a citizenshipjudge utilizes the physical presence test and finds that an applicant has failed to prove the actual days required to establish physicalpresence in Canada, there is no need, in my view, for the citizenship judge to do anything more. [21] Moreover, although the Applicant provided numerous submissions in this regard, the test for residency was not the criticalfactor in this Citizenship Judge’s decision.

As the Respondent maintains, the Applicant would not have met either the quantitative orqualitative tests since the Citizenship Judge found her evidence was not credible due to a failure to disclose several absences. [22] The importance of establishing credible evidence of residency was expressly addressed by Justice Rennie in Abbas v Canada(Minister of Citizenship and Immigration), 2011 FC 145, [2011] FCJ no 167 where he stated: [8] Irrespective of which test is applied, each applicant for citizenship bears the onus of establishing sufficient credible evidence onwhich an assessment of residency can be based, whether it is quantitative (Re Pourghasemi) or qualitative (Koo).

In this regard, thecitizenship judge must make findings of fact - findings which this Court will only disturb if unreasonable. [...] [13] Moreover, as noted earlier, regardless of which test is actually applied by a citizenship judge, there must be a sufficient factualfoundation to warrant the application of a test in the first place. In my opinion, had the Citizenship Judge applied Takla, the outcome inMr. Abbas' case would have been no different than the outcome presented by applying Re Pourghasemi. There were simply too manyunexplained discrepancies with respect to residency in his application.

These would not have simply evaporated under the qualitativeanalysis espoused in Koo and Takla. Inconsistent or unclear evidence of residency will not gain a greater life or strength under thequalitative Koo test. [23] Referring to this reasoning in Atwani v Canada (Minister of Citizenship and Immigration), 2011 FC 1354, [2011] FCJ no

1656, Justice Judith Snider found it was appropriate for a citizenship judge to conclude that an applicant had not met the burden ofestablishing physical presence when issues arose as to undeclared days of absence from Canada. She stated: [16] On the facts of the case, the Applicant would have failed either test for residency – be it a Re Koo or Re Pourghasemi test.

Howcan an assessment of residence be conducted when an accurate number of days of residence cannot be established? [17] […] The importance of citizenship and the application of common sense dictate that a person seeking citizenship in Canada mustcome with a credible record of his time spent in Canada. Thus, any starting point for a residency analysis – whether under Re Koo or RePourghasemi – must be the total number of days of physical presence, supported by credible evidence. [24] The findings in Abbas and Atwani, above are directly applicable in this instance.

The Applicant’s evidence as to travelindicated several additional absences from Canada and cast doubt on her application more broadly. A negative finding of credibility canextend to all relevant evidence (see Sheikh v Canada (Minister of Employment and Immigration) (1990), (FCA), 11Imm LR (2d) 81, [1990] FCJ no 604 (FCA)). [25] The Applicant has suggested that the Citizenship Judge erred in failing to consider the evidence as a whole, namely that evenif the three undeclared absences were taken into account she would still have met the required number of days of residence.

She alsopoints to evidence on her Ministry of Health

Summary. [26] I am unwilling to accept, however, that the Citizenship Judge’s conclusion was unreasonable given the concerns raised byevidence of further absences. On more than one occasion the Applicant made declarations as to the accuracy of the evidence she wasputting forward of physical presence. She cannot expect these declarations to be treated lightly. [27] The Citizenship Judge was therefore justified in his conclusion that this additional evidence had done “irreparable harm” toher credibility.

The Applicant was under an obligation to provide credible information as to her residency which necessarily implies thatit is complete, accurate, reliable and relevant. [28] I am similarly unconvinced by the Applicant’s argument that the Citizenship Judge failed to articulate sufficient reasons forhis decision. The Applicant claims that the Citizenship Judge merely listed the evidence without providing analysis based on Lai vCanada (Minister of Citizenship and Immigration) (2000), (FC), 188 FTR 113, [2000] FCJ no 1361 at paras 11-12).

She also insists that grounds exist for review because she is unclear how her application was assessed. She relies on Canada (Ministerof Citizenship and Immigration) v Salim, 2010 FC 975, [2010] FCJ no 1219. [29] These cases are not applicable to the decision made regarding the Applicant. Although he begins with a numbered

summaryof the relevant evidence, the Citizenship Judge proceeds to analyze that evidence and explain the reasons for his conclusion. TheApplicant merely disagrees with that conclusion. [30] I see no justification for intervening in the Citizenship Judge’s decision where it is perfectly clear to the Applicant in thereasons provided that her application was not approved given serious credibility concerns arising from undeclared absences. B. Procedural Fairness [31] The Applicant further contends that she was not given an opportunity to respond to the negative credibility finding.

She hastried to include additional information explaining why she did not disclose the additional absences in an affidavit and suggests that theCitizenship Judge failed to give her the benefit of the doubt. Alternatively, she suggests her consultant failed to advise her to obtain ICESTraveller History and if she had been so advised she would have disclosed the trips. [32] There is no merit to these arguments. As the Respondent makes clear, the Applicant was given a hearing before theCitizenship Judge.

She had not presented sufficient evidence to establish residency and was provided with the opportunity to submitadditional evidence. The Citizenship Judge thereafter made negative credibility findings that I consider reasonable in light of theevidence ultimately before him. There is no requirement to further give the Applicant the benefit of the doubt.

[ 33 ] Moreover, I am not permitted to evaluate the Applicant’s subsequent explanations for her failure to disclose the absences. This appeal proceeds solely on the record before the Citizenship Judge (see Lama v Canada (Minister of Citizenship and Immigration) , 2005 FC 461 , [2005] FCJ no 577 at para 21 ). I also note that she confirmed on two occasions the accuracy of the information put forward. [ 34 ] As a consequence, the Applicant has not demonstrated any breaches of natural justice or procedural fairness. VI.

Conclusion [ 35 ] The Citizenship Judge reasonably determined that the Applicant had not provided credible evidence. This warranted the denial of her application. In addition, there was no breach of procedural fairness or natural justice in the circumstances. [ 36 ] Accordingly, this appeal is dismissed. JUDGMENT THIS COURT’S JUDGMENT is that this appeal is dismissed. “ D. G. Near ” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-796-11 STYLE OF CAUSE: KOHESTANI v MCI PLACE OF HEARING: TORONTO DATE OF HEARING: FEBRUARY 22, 2012 REASONS FOR JUDGMENT

AND JUDGMENT BY: NEAR J. DATED: MARCH 29, 2012 APPEARANCES : Mehran Youssefi FOR THE APPLICANT Stephen H. Gold FOR THE RESPONDENT SOLICITORS OF RECORD : Mehran Youssefi Barrister and Solicitor Toronto, Ontario FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General Canada FOR THE RESPONDENT