Judgments

Citation:

Qureshi v. Canada (Minister of Citizenship and Immigration), 2009 FC 1081, [2010] 4 F.C.R. 256

T-620-07

T-620-07

2009 FC 1081

Mohammad Ibrahim Qureshi (Applicant)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Qureshi v. Canada (Minister of Citizenship and Immigration)

Federal Court, Near J.—Toronto, September 9; Ottawa, October 26, 2009.

Citizenship and Immigration — Status in Canada — Citizens — Appeal from Citizenship Judge’s decision denying applicant’s citizenship application — Citizenship Judge expressing concerns regarding veracity of applicant’s residency in Canada — Applicant contending Citizenship Judge breaching rule of natural justice by not disclosing anonymous letter relied upon in decision — Issues: (1) whether Citizenship Judge failing to observe principles of procedural fairness, (2) whether Citizenship Judge erring in finding applicant not meeting residency requirements — Case law showing applicant must be given opportunity to respond to matters raised in extrinsic evidence, such as anonymous letters — Non-disclosure of anonymous communications prejudicial to applicant in immigration context generally considered breach of procedural fairness, particularly when relied upon in decision-making process — Citizenship Judge disclosing contents of anonymous letter, giving applicant opportunity to address allegations contained in it — Applicant thus not entitled to receive copy of actual letter — Disclosure requirements fulfilled, procedural fairness not breached — Open to Citizenship Judge to find applicant not credible in fulfilling onus of showing his presence in Canada for required period of time — Based on evidence, Citizenship Judge’s conclusion reasonable — Appeal dismissed.

This was an appeal, pursuant to subsection 14(5) of the Citizenship Act, of a decision made by a Citizenship Judge denying the applicant’s application for Canadian citizenship. The Citizenship Judge found the central issue to be whether the applicant had accumulated at least three years of residence in Canada within the four years immediately preceding his citizenship application, pursuant to the residency requirements in paragraph 5(1)(c) of the Act. In her reasons, the Citizenship Judge expressed concerns regarding the veracity of the applicant’s residency in Canada.

The issues were:  (1) whether the Citizenship Judge failed to observe the principles of procedural fairness, and (2) whether the Citizenship Judge erred in fact and in law in finding that the applicant did not meet the residency requirements under the Act.      

Held, the appeal should be dismissed.

The applicant submitted that because the Citizenship Judge based her decision, in part, on an anonymous letter and that it was not fully disclosed, she breached a rule of natural justice. A high level of procedural fairness must inform a Citizenship Judge’s decision-making process. While the case law on the extent of disclosure necessary to uphold the principles of procedural fairness is unsettled, generally, it shows that an applicant must be given an opportunity to respond to matters raised in extrinsic evidence such as anonymous letters. The non-disclosure of anonymous communications that are prejudicial to an applicant in the immigration context has generally been considered to be a breach of procedural fairness, particularly when officers have relied on them in their decision-making process.

The applicant was owed disclosure of the contents of the anonymous letter on which the Citizenship Judge relied upon in order to respond to the allegations contained within it. However, because the Citizenship Judge did disclose the contents of the letter, and the applicant was given an opportunity to address any allegations it may have contained, he was not entitled to receive a copy of the actual letter. The disclosure requirements were fulfilled and procedural fairness was not breached.

With regard to the second issue, it was clear from the Citizenship Judge’s reasons that she applied the physical presence test and found the applicant’s evidence lacking. In some instances, the statements and inconsistencies in various documents were relatively minor but it was open to the Citizenship Judge to find that, taken as a whole, they supported her finding that the applicant was not credible with respect to fulfilling the onus to show that he was present in Canada for the required period of time. The Citizenship Judge’s conclusion was reasonable based on the evidence before her.    

STATUTES AND REGULATIONS CITED

Citizenship Act, R.S.C., 1985, c. C-29, ss. 5(1) (as am. by S.C. 2001, c. 27, s. 228), (4), 14(1) (as am. by S.C. 2008, c. 14, s. 10), (5),(6), 15(1).

Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 21 (as am. idem, s. 30).

Federal Courts Rules, SOR/98-106, rr. 1 (as am. by SOR/2004-283, s. 2), 300(c).

CASES CITED

Applied:

Chen v. Canada (Minister of Citizenship and Immigration), 2004 FC 1693; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, 329 N.B.R. (2d) 1, 291 D.L.R. (4th) 577; Chowdhury v. Canada (Minister of Citizenship and Immigration), 2009 FC 709, 82 Imm. L.R. (3d) 1, 347 F.T.R. 76; Sadykbaeva v. Canada (Minister of Citizenship and Immigration), 2008 FC 1018, 74 Imm. L.R. (3d) 283, 336 F.T.R. 51.

considered:

Edobor v. Canada (Minister of Citizenship and Immigration), 2007 FC 883, 65 Imm. L.R. (3d) 199; Canada (Minister of Citizenship and Immigration) v. Mueller, 2005 FC 227; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, (1990), 69 D.L.R. (4th) 489, [1990] W.W.R. 289; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193, 14 Admin. L.R. (3d) 173; Redman v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 120 (F.C.T.D.); Karakulak v. Canada (Minister of Citizenship and Immigration) (1996), 119 F.T.R. 288 (F.C.T.D.); Dasent v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 720; D’Souza v. Canada (Minister of Citizenship and Immigration), 2008 FC 57, 321 F.T.R. 315; Liu v. Canada (Minister of Citizenship and Immigration), 2008 FC 1253, 76 Imm. L.R. (3d) 261; Canada (Minister of Citizenship and Immigration) v. Navarrete, 2006 FC 691, 294 F.T.R. 242.

referred to:

Farshchi v. Canada (Minister of Citizenship and Immigration), 2007 FC 487; Tulupnikov v. Canada (Minister of Citizenship and Immigration), 2006 FC 1439; Tshimanga v. Canada (Minister of Citizenship and Immigration), 2005 FC 1579; Canada (Minister of Citizenship and Immigration) v. Wall, 2005 FC 110, 45 Imm. L.R. (3d) 32, 271 F.T.R. 146; Zeng v. Canada (Minister of Citizenship and Immigration), 2004 FC 1752; Rasaei v. Canada (Minister of Citizenship and Immigration), 2004 FC 1688; Gunnarsson v. Canada (Minister of Citizenship and Immigration), 2004 FC 1592, 43 Imm. L.R. (3d) 204; Karic v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm. L.R. (2d) 52, 145 F.T.R. 308 (F.C.T.D.); Shah v. Canada (Minister of Employment and Immigration) (1994), 29 Imm. L.R. (2d) 82, 81 F.T.R. 320, 170 N.R. 238 (F.C.A.); Ray v. Canada (Minister of Citizenship and Immigration), 2006 FC 731; Rizvi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1641.

APPEAL pursuant to subsection 14(5) of the Citizenship Act from the decision of a Citizenship Judge denying the applicant’s citizenship application. Appeal dismissed.

APPEARANCES

Akbar Ali for applicant.

Tamrat Gebeyehu for respondent.

SOLICITORS OF RECORD

Akbar Ali, Mississauga, Ontario, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment and judgment rendered in English by

[1] Near J.: This is an appeal made pursuant to subsection 14(5) of the Citizenship Act, R.S.C., 1985, c. C-29; section 21 [as am. by S.C. 2002, c. 8, s. 30] of the Federal Courts Act, R.S.C., 1985, c. F-7 [s. 1 (as am. idem, s. 14)]; and paragraph 300(c) of the Federal Courts Rules, SOR/98-106 [r. 1 (as am. by SOR/2004-283, s. 2)], of a decision made by Citizenship Judge Renata Brum Bozzi, dated February 12, 2007, denying the appellant’s application for Canadian citizenship.

I. Background

A. Facts

[2] The appellant, Mohammad Ibrahim Qureshi, is a 36-year-old Pakistani citizen. He became a permanent resident of Canada on June 27, 2000. The appellant was later joined by his wife and daughter in 2003. During his time in Canada, the appellant has rented accommodation at three separate addresses. From the date that the appellant entered Canada as a permanent resident through to the date that his citizenship application was refused, he made several trips outside the country, principally to Pakistan, the United Arab Emirates, and the United Kingdom.

[3] After landing in Canada, Mr. Qureshi established a sole proprietorship in August 2001 under the name Micro Masters and has rendered services for a local Canadian restaurant called Tandoori Time between 2000–2005. In his residency questionnaire, he submitted that he has also been an active member of the Pakistani community in Canada and volunteers at a local Muslim community organization. His daughter was also registered at a local Islamic school between 2004–2005. Mr. Qureshi has filed income taxes in Canada between 2000–2005.

[4] The appellant applied for citizenship on June 27, 2004. On his citizenship application, he declared that he had been absent from Canada for 104 days between June 27, 2000 and June 27, 2004 (the material period).

[5] The appellant was later convoked for a hearing before a citizenship judge. This hearing took place on December 15, 2006. The Judge later called the appellant and a phone conversation took place on December 18, 2006. A follow-up meeting was also arranged and took place on January 5, 2007.

[6] The Citizenship Judge found the central issue to be whether the appellant had accumulated at least three years of residence in Canada within the four years immediately preceding his citizenship application, pursuant to the residency requirements in paragraph 5(1)(c) [as am. by S.C. 2001, c. 27, s. 228] of the Citizenship Act (see Annex).

B. Decision of Citizenship Judge

[7] In her reasons, the Citizenship Judge expressed concerns regarding the veracity of Mr. Qureshi’s residency in Canada. She stated: “Taken as a whole, a) the contradictions on the residence questionnaire, b) the inconsistencies at the hearing, during the telephone conversation and at the follow-up meeting, c) the insufficiency of tangible evidence of residency during the material period and d) the anonymous letter, all serve to challenge the truthfulness of the applicant’s residency”. She pointed out that the onus falls on the applicant to demonstrate that “he was in Canada for three of four years of his material time period”, and that Mr. Qureshi has failed to do this on the balance of probabilities. The Judge also noted that the evidence does not demonstrate any special circumstances, and that she therefore declined to use her discretion under subsection 5(4) of the Citizenship Act (see Annex).

II. Issues

[8] Did the Citizenship Judge fail to observe principles of procedural fairness?

[9] Did the Citizenship Judge err in fact and in law in finding that the appellant did not meet the residency requirements under paragraph 5(1)(c) of the Citizenship Act?

III. Standard of Review

A. The appellant’s submissions

[10] The appellant does not make any submissions as to the standard of review.

B. The respondent’s submissions

[11] The respondent submitted that the question of whether a person has met the residency requirements under the Citizenship Act is a question of mixed fact and law. As such, the respondent argued that the appropriate standard of review is reasonableness simpliciter. They added that Federal Court jurisprudence states that under the standard of reasonableness, citizenship judges are owed some deference by virtue of their special degree of knowledge and experience. Therefore, deference should be shown as long as there is a demonstrated understanding of the case law and appreciation of the facts and their applicability to the statutory test.

[12] The respondent cited the following cases to support this proposition: Farshchi v. Canada (Minister of Citizenship and Immigration), 2007 FC 487; Tulupnikov v. Canada (Minister of Citizenship and Immigration), 2006 FC 1439; Tshimanga v. Canada (Minister of Citizenship and Immigration), 2005 FC 1579; Canada (Minister of Citizenship and Immigration) v. Wall, 2005 FC 110, 45 Imm. L.R. (3d) 32; Zeng v. Canada (Minister of Citizenship and Immigration), 2004 FC 1752; Chen v. Canada (Minister of Citizenship and Immigration), 2004 FC 1693; Rasaei v. Canada (Minister of Citizenship and Immigration), 2004 FC 1688; Gunnarsson v. Canada (Minister of Citizenship and Immigration), 2004 FC 1592, 43 Imm. L.R. (3d) 204.

C. Analysis

[13] The respondent’s submissions only relate to issue No. 2. The first issue to be addressed concerns a matter of procedural fairness relating to the disclosure of an anonymous letter.

(1) Procedural fairness—Disclosure of anonymous letter

[14] The issue relating to the disclosure of the anonymous letter is one which involves procedural fairness. This Court has held that when dealing with the issue of extrinsic evidence, the judge does not need to engage in an assessment of the appropriate standard of review but should evaluate whether the rules of procedural fairness have been adhered to: see Edobor v. Canada (Minister of Citizenship and Immigration), 2007 FC 883, 65 Imm. L.R. (3d) 199, at paragraph 23. Procedural fairness raises a question of law, reviewable on a standard of correctness, and, as such, I find the standard applicable to this issue to be one of correctness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.

[15] In Dunsmuir, above, the Supreme Court of Canada held at paragraph 50 that:

When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.

(2) Application of legal test of residency to facts of a particular case

[16] The issue of whether a person has met the residency requirements under the Citizenship Act requires the application of a legal test to the facts of a particular case. Therefore, it involves a question of mixed fact and law. The cases cited by the respondent all support this proposition.

[17] It is important to note that Justice Judith Snider in Chen, above, pointed out that the Federal Court has, in the past, applied a standard of correctness to decisions made by citizenship judges. However, she went on to state that more recent decisions of this Court have reviewed citizenship appeals on a standard of reasonableness simpliciter. In her later decision of Canada (Minister of Citizenship and Immigration) v. Mueller, 2005 FC 227, Justice Snider noted at paragraph 4 that judgments in respect of the standard of review applicable to citizenship judges’ decisions have “coalesced” around the reasonableness standard. Accordingly, she concluded at paragraph 5 of Chen, above, that citizenship judges are “owed some deference by virtue of their special degree of knowledge and experience” and that “as long as there is a demonstrated understanding of the case law and appreciation of the facts and their application to the statutory test, deference should be shown.”

[18] Furthermore, in Chowdhury v. Canada (Minister of Citizenship and Immigration), 2009 FC 709, 82 Imm. L.R. (3d) 1, Justice Max Teitelbaum notes that in Dunsmuir, above, the Supreme Court of Canada held that when a standard of review applicable to a specific issue before the court is well settled in the jurisprudence, a court may adopt that standard of review. As such, the standard of review applicable to this issue is reasonableness.

[19] According to the Supreme Court in Dunsmuir, above, reviewing a decision on the standard of reasonableness involves an analysis of “the existence of justification, transparency and intelligibility within the decision-making process.” It entails probing “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: see Dunsmuir, above, at paragraph 47.

IV. Analysis

A. Did the Citizenship Judge fail to observe principles of procedural fairness?

(1) The appellant’s submissions

[20] The appellant submitted that the Citizenship Judge erred in relying on an anonymous letter received with regard to the appellant’s absences from Canada. Further, the appellant requested that a copy of the letter be provided to him in order that he be permitted to make a full and complete answer to it.

[21] The appellant submitted that because the Citizenship Judge based her decision, in part, on the anonymous letter and its contents, and that the letter was not fully disclosed, she breached a rule of natural justice: Karic v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm. L.R. (2d) 51 (F.C.T.D.).

(2) The respondent’s submissions

[22] The respondent did not make any submissions either with regard to the issue of disclosure of the anonymous letter or the issues of natural justice and procedural fairness.

(3) Analysis

(a) Content of duty of fairness in citizenship cases

[23] In Sadykbaeva v. Canada (Minister of Citizenship and Immigration), 2008 FC 1018, 74 Imm. L.R. (3d) 283, Justice Yves de Montigny held that a high level of procedural fairness must inform a citizenship judge’s decision-making process. In coming to this conclusion, he noted that the Supreme Court in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, (1990), 69 D.L.R. (4th) 489, at page 682, advised that “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.” He relied on the subsequent Supreme Court decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193, at paragraph 22 et seq., to determine the content of the duty of fairness in citizenship cases. In Baker, above, the Court developed a list of factors to aid in this assessment: the nature of the decision, the statutory scheme, the importance of the decision to the individual affected, the legitimate expectations of the individual, and the decision maker’s choice of procedures. Accordingly, Justice de Montigny held at paragraphs 15–16 that:

… a fairly high standard of procedural fairness must inform the decision-making process followed in a citizenship application. I am mindful of the fact that decisions to deny citizenship applications are not final and may be appealed to the Federal Court pursuant to section 14(5) of the Citizenship Act, and that the discretion bestowed on Citizenship Judges is quite broad and affords them a wide margin of appreciation to decide on proper information gathering procedures.

That being said, the nature of the decision clearly resembles an adjudication. It is based on facts concerning an individual, which are assessed in light of reasonably objective criteria, and the outcome applies only to the individual party. Moreover, the decision to grant or deny citizenship is obviously of great importance to the applicant as it affects her rights, privileges and responsibilities in this country...

(b) Breach of procedural fairness in this particular case

[24] Having established that a high level of procedural fairness must inform a citizenship judge’s decision-making process, it is important to determine whether this duty was breached with respect to the particular facts of this case.

[25] In Redman v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 120 (F.C.T.D.), an application for judicial review of a refusal to grant permanent residence based on humanitarian and compassionate grounds, an immigration officer received an anonymous letter which was prejudicial to the applicants. The letter was not disclosed to them, but the immigration officer stated that she did not consider the letter in assessing the applicants’ application. Justice Marshall Rothstein, as he then was, held that the immigration officer did not comply with the minimal requirements of procedural fairness applicable to humanitarian and compassionate proceedings prescribed by Shah v. Canada (Minister of Employment and Immigration), (1994), 29 Imm. L.R. (2d) 82 (F.C.A.). Specifically, Justice Rothstein stated at paragraph 4 that:

When an anonymous letter prejudicial to an applicant is received by an Immigration Officer, such letter must be disclosed. The alternative—non-disclosure discovery by an applicant after a negative decision has been made and then an assertion by the Immigration Officer that the letter was not relied upon—leads to a perception of unfairness.

[26] Further, he added at paragraph 5 that:

In the immigration context, anonymous prejudicial letters are particularly nasty and offensive. In most cases, the contents of such communications will rightly be disregarded. However, fairness requires that when such potentially damaging information is received it must be disclosed so that an applicant may be satisfied, before a decision is made, that it will be disregarded, or that he or she has had an opportunity to respond to it.

[27] This holding is to be contrasted with an earlier decision in Karakulak v. Canada (Minister of Citizenship and Immigration) (1996), 119 F.T.R. 288 (F.C.T.D.), where an application for judicial review of a decision denying permanent resident status based on humanitarian and compassionate grounds was dismissed by the Federal Court. The applicant argued a breach of natural justice stating that he did not receive full disclosure of anonymous letters in the Minister’s possession. Justice John Richard, relying on the decisions in Shah and Dasent v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 720, (1994), 87 F.T.R. 282, held [at paragraph 8 of Karakulak] that “the failure to disclose extrinsic evidence is only said to be a breach of natural justice if it is subsequently relied on by the immigration officer.” The Court concluded that there was no evidence that the immigration officer relied on the anonymous letters in their decision. As such, there was no breach of natural justice.

[28] Nevertheless, both the approach in Redman, above, and Karakulak, above, support the proposition that a breach of natural justice occurs when an officer fails to disclose extrinsic evidence which is subsequently relied on in their decision. It is clear that, in Mr. Qureshi’s case, the Citizenship Judge relied on the anonymous letter in coming to her determination. She explicitly stated as much in her decision.

[29] The extent of disclosure necessary to uphold principles of procedural fairness is unsettled in the jurisprudence. In D’Souza v. Canada (Minister of Citizenship and Immigration), 2008 FC 57, 321 F.T.R. 315, Justice Sean Harrington held that procedural fairness demanded that an anonymous letter be shown to the individual concerned. The decision involved judicial review of an immigration officer’s refusal of an application to sponsor an individual based on humanitarian and compassionate considerations. However, it is important to note that Justice Harrington qualified his findings stating at paragraph 14 that “[i]t is not absolutely mandatory that extrinsic evidence in this form be given to the applicant. In some instances, putting the allegations from the anonymous source to the applicant may be sufficient.”

[30] Similarly, Justice Rothstein, in his earlier decision in Dasent, above, held at page 731 that “[t]he relevant point as I see it is whether the applicant had knowledge of the information so that he or she had the opportunity to correct prejudicial misunderstandings or misstatements.” In Liu v. Canada (Minister of Citizenship and Immigration), 2008 FC 1253, 76 Imm. L.R. (3d) 261, Justice James O’Reilly held at paragraph 13 that “it is open to an officer to disbelieve an applicant, but only after giving the applicant a fair chance to respond to concerns arising from extrinsic sources.” Liu, above, involved an application for judicial review of a visa officer’s decision denying the applicant a work permit. The visa officer discovered through anonymous tips and an investigation that the applicants were part of an illegal recruitment scheme.

[31] In general, therefore, the jurisprudence shows that applicants must be given an opportunity to respond to matters raised in extrinsic evidence such as anonymous letters. The non-disclosure of anonymous communications which are prejudicial to applicants in the immigration context has generally been considered to be a breach of procedural fairness—particularly when officers have relied on them in their decision-making process. Indeed the Court held in Edobor v. Canada (Minister of Citizenship and Immigration), at paragraph 25, that “[t]he importance of giving notice and providing an opportunity to respond to the evidence is accentuated when the board intends to rely on the evidence to make a decision.”

[32] Therefore, it is my view that Mr. Qureshi was owed disclosure of the contents of the anonymous letter on which the Citizenship Judge relied so that he was able to respond to the allegations contained within it.

[33] In this case, the Citizenship Judge did, in fact, disclose the contents of the letter that were of concern to her and provided an opportunity for Mr. Qureshi to both discuss and refute those areas of concern contained in the letter. I do not accept the proposition that Mr. Qureshi was entitled to receive a copy of the actual letter and have concluded that disclosure of the contents of the letter coupled with the opportunity to address any allegations it may have contained fulfills the disclosure requirements and, as such, find that there was no breach of procedural fairness on the part of the Citizenship Judge.

[34] It should be noted, however, that Federal Court jurisprudence has viewed anonymous communications as innately suspect. In D’Souza, above, the Court also noted at paragraph 15 that anonymous letters are “inherently unreliable.” The Court relied on holdings in both Canada (Minister of Citizenship and Immigration) v. Navarrete, 2006 FC 691, 294 F.T.R. 242; and Ray v. Canada (Minister of Citizenship and Immigration), 2006 FC 731, in reaching this conclusion. In Navarrete, above, Justice Michel Shore at paragraph 27 held that “[t]he source and the motives as well as the information provided by this type of letter cannot always be verified. Therefore, the information is not necessarily trustworthy.” In that case, the Court found that it was reasonable for the Immigration and Refugee Board to refuse to give weight to the information provided in anonymous letters.

B. Did the Citizenship Judge err in law and in fact in finding that the appellant did not meet the residency requirements under paragraph 5(1)(c) of the Citizenship Act?

(1) The appellant’s submissions

[35] The appellant takes the position that the Citizenship Judge misapprehended or ignored evidence which clearly established Mr. Qureshi’s residence in Canada. Specifically, the appellant takes issue with the Citizenship Judge’s findings with respect to a number of issues raised in the decision. These include conclusions reached with respect to a lost visa, bank withdrawals, travels to and from Pakistan, residence issues, family medical records, inconsistencies in his residency questionnaire, rental receipts and other matters of concern to the Citizenship Judge.

(2) The respondent’s submissions

[36] The respondent submits that the Citizenship Judge did not err in finding that the appellant did not meet the residency requirements under the Citizenship Act. Further, the appellant failed to demonstrate that he was in Canada for three of four years of his material time period.

[37] The respondent states that the onus to provide sufficient evidence of residency lies on the appellant, and that he failed to discharge this burden: Rizvi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1641. Overall, the respondent submits that: (1) there were inconsistencies in the appellant’s evidence; and (2) the appellant failed to provide sufficient tangible evidence of residency during the material period.

(3) Analysis

[38] It is clear that the Citizenship Judge was highly suspicious of various statements and documentation provided to her by Mr. Qureshi. Ultimately these served to undermine his credibility and the evidence of his presence in Canada during the material period. It was clear from the reasons that the Citizenship Judge applied the physical presence test and found the appellant’s evidence lacking. In some instances the statements and inconsistencies in various documents were relatively minor but in my view, it was open to the Citizenship Judge to find that, taken as a whole, they supported her finding that the appellant was not credible with respect to fulfilling the onus upon him to show that he was present in Canada for the required period of time within the material period.  I would not disturb that finding and find that it was a reasonable conclusion based on the evidence before her. I have concluded that the decision of the Citizenship Judge falls “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir, above, at paragraph 47.

JUDGMENT

THIS COURT ORDERS AND ADJUDGES that:

1.       the appeal is dismissed; and

2.       there is no order as to costs.

ANNEX

Citizenship Act (R.S.C., 1985, c. C-29)

Grant of citizenship	5. (1) The Minister shall grant citizenship to any person who
	(a) makes application for citizenship;
	(b) is eighteen years of age or over;
	(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner:
	(i) 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
	(ii) 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;
	(d) has an adequate knowledge of one of the official languages of Canada;
	(e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and
	(f) is not under a removal order and is not the subject of a declaration by the Governor in Council made pursuant to section 20.
	…
Special cases	(4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction.
	…
Consideration by Citizenship Judge	14. (1) An application for
	(a) a grant of citizenship under subsection 5(1) or (5),
	(c) a renunciation of citizenship under subsection 9(1), or
	(d) a resumption of citizenship under subsection 11(1)
	shall be considered by a Citizenship Judge who shall, within sixty days of the day the application was referred to the judge, determine whether or not the person who made the application meets the requirements of this Act and the regulations with respect to the application.
	…
Appeal	(5) The Minister or the applicant may appeal to the Court from the decision of the Citizenship Judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which
	(a) the Citizenship Judge approved the application under subsection (2); or
	(b) notice was mailed or otherwise given under subsection (3) with respect to the application.
Decision final	(6) A decision of the Court pursuant to an appeal made under subsection (5) is, subject to section 20, final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
Recommendation re use of discretion	15. (1) Where a Citizenship Judge is unable to approve an application under subsection 14(2), the judge shall, before deciding not to approve it, consider whether or not to recommend an exercise of discretion under subsection 5(3) or (4) or subsection 9(2) as the circumstances may require.