MOHAMAD RAGHEB ABBAS Applicant v. MINISTER OF CITIZENSHIP AND, 2011 FC 145
Opinion
Federal Court Cour fédérale Date: 20110209 Docket: T-988-10 Citation: 2011 FC 145 Ottawa, Ontario , February 9, 2011 PRESENT: The Honourable Mr. Justice Rennie BETWEEN: MOHAMAD RAGHEB ABBAS Applicant and MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application pursuant to subsection 14(5) of the Citizenship Act (R.S., 1985, c. C-29) (the Act ) for judicial review of a Citizenship Court decision dated April 26, 2010 refusing the applicants application for citizenship. Overview [ 2 ] The applicant came to Canada on September 17, 2003.
He became a permanent resident on May 12, 2005 and applied for citizenship on March 21, 2008. In refusing the application the Citizenship Judge expressed concern about the lack of an audit trail verifying the applicants actual residence in Canada . The applicant had been outside of Canada for 186 days in the United Arab Emirates (UAE), which, when deducted from his total residency period of 1252 days, left him with 1,095 days of purported residence in Canada. [ 3 ] When Mr.
Abbas applied for Canadian citizenship in March 2008 he thought he had exactly the minimum number of days of residency in Canada required by section 5(1) (
c) of the Act . Section 5(1)(
c) of the Act requires a potential citizen to maintain residency in Canada for three out of the four years immediately preceding his or her application for permanent residency (i.e. 1,095 out of 1,460 days). The Citizenship Judge rejected Mr. Abbas application, concluding that: The main problem with this case is the lack of objective evidence showing an audit trail of a life in Canada during the relevant time period which serves to demonstrate that Mr Abbas established and maintained a residence for the number of days required in the Act .
In matters of residency, the onus falls on the applicant to demonstrate that he or she has resided in the country for three of the four yearsin the relevant period in order to show that he or she meets the residency requirements of the Act has been set out in Maharatnam vCanada (Minister of Citizenship)
(2000) F.C.J. No. 405 (F.C.D.). The applicant failed to do this. Applying the residency test set by Muldoon J in Re Pourghasemi, I conclude that on the balance of probabilities, I am not satisfied thatyou meet the residency requirements under s. 5(1)(
c) of the Act. [4] Questioning the veracity of his testimony and documentation the Citizenship Judge was not satisfied that the informationprovided by Mr. Abbas on his citizenship application accurately reflected the actual number of days he was physically present inCanada. In applying the test in Re Pourghasemi, [1993] FCJ No 232, the Citizenship Judge determined that Mr. Abbas had not met theresidency requirements under s. 5(1)(
c) of the Act. Mr. Abbas seeks review of this decision, arguing that it was an error of law for theCitizenship Judge to have applied Re Pourghasemi. The Issue [5] The applicant contends that the Citizenship Judge erred in law by applying the residency test expressed in Re Pourghasemi.
The applicant urges that there is one legally correct test, namely the six-part analysis as expressed in Koo (Re), (FC),[1993] 1 FC 286 which was subsequently followed by this Court in Canada (Citizenship and Immigration) v Takla, 2009 FC 1120 andwhich he argues should have been followed by the Citizenship Judge to assess his application. Mr. Abbas argues that the CitizenshipJudge had no choice but to follow the decision in Takla, which was rendered some five months prior to the Citizenship Judges decisionand which has been followed by other judges of the Federal Court.
The issue in this case is, therefore, whether the Citizenship Judgeerred in law in following Re Pourghasemi and not Takla.
Analysis [6] In support of his position the applicant notes that there are several recent decisions of this Court which apply the qualitativetest of Koo and Takla, for example: Canada (Citizenship and Immigration) v Elzubair, 2010 FC 298; Canada (Citizenship andImmigration) v Cobos, 2010 FC 903; and Dedaj v Canada (Citizenship and Immigration), 2010 FC 777. [7] Counsel for the Respondent notes, however, that the quantitative test in Re Pourghasemi has also been applied by this Court,subsequent to Takla, and still other cases which leaves the selection of which test to apply open to the Citizenship Judge provided theunderlying rationale for its application is clearly expressed and is reasonable, for example: Canada (Citizenship and Immigration) vJeizan, 2010 FC 323; Sarvarian v Canada (Citizenship and Immigration), 2010 FC 1117; and Alexander David Cardin v Minister ofCitizenship and Immigration, 2011 FC 29.
The respondent also notes that the reasoning in Takla is obiter and that the decision is notbinding on other judges of the Court. [8] Irrespective of which test is applied, each applicant for citizenship bears the onus of establishing sufficient credible evidenceon which 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. [9] The requirement for credible, consistent evidence establishing residency, however defined, does not disappear under eitherthe quantitative or the qualitative test.
Justice Mainville recognized this in Takla: Finally, as a last point, it is useful to note that the Koo test and the six-questions analysis attached to that test are only useful to the extentthat residence in Canada has actually been established at a date prior to the citizenship application in order to effectively calculate aperiod of residence under the Citizenship Act.
In fact, if the threshold issue of residence has not been established, the judge should notconduct a more thorough analysis. (para. 50) [10] Similarly, Justice Layden-Stevenson (as she then was) articulated an effective analytical framework governing the approachto the review of Citizenship decisions. In Goudimenko v Canada (Minister of Citizenship and Immigration), 2002 FCT 447, para. 13 sheheld: The difficulty with the appellants reasoning is that it fails to address the threshold issue, his establishment of residence in Canada. Unlessthe threshold test is met, absences from Canada are irrelevant . . .
In other words, a two-stage inquiry exists with respect to the residencyrequirements of paragraph 5(1)(
c) of the Act. At the first stage, the threshold determination is made as to whether or not, and when,
residence in Canada has been established. If residence has not been established, the matter ends there. If the threshold has been met, thesecond stage of the inquiry requires a determination of whether or not the particular applicants residency satisfies the required total daysof residence. It is with respect to the second stage of the inquiry, and particularly with regard to whether absences can be deemedresidence, that the divergence of opinion in the Federal Court exists. [11] Justice Layden-Stevensons reasoning is apposite in this application.
Residency itself must, as a matter of evidence, beestablished on a balance of probabilities. In this case, the Citizenship Judge found that the evidence was insufficient to establishresidency as the evidence was unclear and inconsistent. In particular, the Citizenship Judge noted: a. On the applicants residency questionnaire, he noted that he had been living and working in Dubai, UAE, since March 2008. Thiswas in direct contradiction to what he informed CIC during his citizenship test; b. There was a discrepancy as to his address as of March, 2008, and whether it was Windsor, Ontario, or the UAE; c.
There was inconsistent evidence as to whether he lived with his wife in Windsor, or whether his wife lived with him in the UAE for18 months; d. There was a discrepancy between the Canadian address shown on the residency questionnaire with the residence shown on thetemporary Ontario drivers licence; and e. His temporary Ontario drivers licence was applied for the day before the hearing. [12] The applicant does not challenge these findings, but rests his case on the assertion that it was an error of law for theCitizenship Judge not to apply the test articulated in Takla, above.
As noted, consistent with this Courts decision in Lam v Canada(Minister of Citizenship and Immigration), (1999), (FC), 164 FTR 177, provided the citizenship judge adopts andapplies one test correctly, the decision will not be disturbed. Takla did not, and could not, overrule Lam, as the applicant contends. [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. [14] It is settled law that the standard of review of a citizenship judges decision is reasonableness; Zhang v Canada (Citizenshipand Immigration), 2008 FC 483; El Falah v Canada (Citizenship and Immigration), 2009 FC 736.
Consequently, when dealing withquestions of mixed fact and law, as in the application of the test of residency to the particular facts of the case, or to purely factualquestions, as when computing the days of presence in Canada, the reviewing court should assess the reasons below to ensure that it iswithin the range of possible, acceptable outcomes defensible in respect of the law and facts: Dunsmuir v New Brunswick, 2008 SCC 9,[2008] 1 SCR 190.
In this case the different explanations given by the applicant as to his actual residence in Canada, as to the residenceof his wife and whether he lived with her, did not show on a balance of probabilities whether the threshold question of residence hadbeen established, as set forth in Goudimenko, above. [15] For these reasons, I find the decision of the Citizenship Judge to be within the range of possible, acceptable outcomes anddefensible in respect of the facts and law. Accordingly, the application for judicial review is dismissed.
JUDGMENT THIS COURTS JUDGMENT is that the application for judicial review be and is hereby dismissed.
"Donald J. Rennie" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-988-10 STYLE OF CAUSE: MOHAMAD RAGHEB ABBAS v MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto DATE OF HEARING: January 11, 2011 REASONS FOR JUDGMENT: RENNIE J. DATED: February 9, 2011 APPEARANCES : Mr. Wennie Lee FOR THE APPLICANT Ms. Sally Thomas FOR THE RESPONDENT SOLICITORS OF RECORD :
Wennie Lee Barrister & Solicitor Toronto, Ontario FOR THE APPLICANT Myles J. Kirvan, Deputy Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT
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