Canada (Minister of Citizenship and Immigration) v. Vijayan, 2015 FC 289

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: February 11, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 289;(2015), 472 F.T.R. 248 (FC)

Can. (M.C.I.) v. Vijayan (2015), 472 F.T.R. 248 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MR.036

The Minister of Citizenship and Immigration (applicant) v. Thomas Thomas Vijayan (respondent)

(T-1756-14; 2015 FC 289)

Indexed As: Canada (Minister of Citizenship and Immigration) v. Vijayan

Federal Court

Mosley, J.

March 9, 2015.

Summary:

Vijayan, a citizen of India and permanent resident of the United Arab Emirates, was granted Canadian citizenship. The Minister of Citizenship and Immigration applied for judicial review.

The Federal Court allowed the application. The court remitted the matter to the Minister, to determine whether Vijayan met the residence requirements under the Act. "If the Minister is satisfied that this is the case, he shall grant him citizenship. If the Minister is not satisfied, he shall once more refer the matter to a Citizenship Judge."

Aliens - Topic 2510

Naturalization - General - Duties of citizenship judge - The respondent, a citizen of India and permanent resident of the United Arab Emirates (UAE), was granted Canadian citizenship - The Federal Court held that the Citizenship Judge erred by failing to explain and justify his decision in light of two possible misrepresentations - First, by assigning a speculative duration to the respondent's undeclared absences without expressly considering whether his failure to declare 12 trips affected his overall credibility - Second, he did not reasonably engage with the issue of the respondent's credit card use in the UAE during times that he claimed to be in Canada - He simply accepted that a charge in Abu Dhabi was incurred by the respondent's daughter who had a secondary credit card on his account - The respondent's oldest daughter was between 9 and 12 years old when the transactions occurred and the respondent did not explain how she could use a credit card on her own in the UAE - Further, he claimed that his children were enrolled in school in Oakville at the relevant time and provided report cards to that effect; he never explained how his daughter could go shopping in Abu Dhabi during the school year - The Minister did not bear the burden of proving that the respondent did in fact make deliberate misrepresentations - The record disclosed a reasonable possibility that this might have occurred, and so the Citizenship Judge should have dug deeper - The Citizenship Judge also failed to investigate credit card transactions which apparently occurred in the United States on days when the respondent claimed to be in Canada - See paragraphs 64 to 81.

Aliens - Topic 2510

Naturalization - General - Duties of citizenship judge (incl. duty re reasons) - [See second Aliens - Topic 2525 ].

Aliens - Topic 2511

Naturalization - General - Evidence and proof - [See third Aliens - Topic 2525 ].

Aliens - Topic 2511

Naturalization - General - Evidence and proof - The respondent, a citizen of India and permanent resident of the United Arab Emirates, was granted Canadian citizenship - The Minister of Citizenship and Immigration applied for judicial review raising issues respecting, inter alia, the Citizenship Judge's credibility findings - The Federal Court stated that "The respondent cites immigration cases to support his contention that misrepresentation requires a guilty mind ... . However, misrepresentations have different consequences for individuals applying for permanent residence and those applying for citizenship. In Elzubair [2010 FC] ...., the Court noted that 'there are minimal repercussions for misrepresentation on citizenship applications', since applicants can apply again. By contrast, someone who makes a misrepresentation in a permanent residence application may be found inadmissible and removed from Canada. In light of these important differences, it is far from clear that the understanding of misrepresentation in the immigration jurisprudence ought to be imported to applications for citizenship." - See paragraphs 75 and 76.

Aliens - Topic 2525

Naturalization - Qualifications - Residence - The Federal Court stated that "Uncertainty has long plagued the case law on citizenship. Residence in Canada is a crucial requirement for obtaining Canadian citizenship, yet this Court has applied two different tests for assessing that requirement: the quantitative 'physical presence' test and the qualitative 'centralized mode of existence' test. An applicant has no way of knowing in advance which test will govern her case. A Citizenship Judge may reasonably use one test to reject her application even though the other test may have justified a grant of citizenship. Amendments to the Citizenship Act, RSC 1985, c C-29 ... will bring needed clarity to the law by entrenching the physical presence standard in the statutory text. However, those amendments have not yet come into force." - See paragraphs 1 and 2.

Aliens - Topic 2525

Naturalization - Qualifications - Residence - Vijayan, a citizen of India and permanent resident of the United Arab Emirates, was granted Canadian citizenship - The Citizenship Judge applied a qualitative analysis (Koo test) to find that Vijayan had met the residency requirement - Under the Koo test, a Citizenship Judge could determine that an applicant for citizenship had met the residence requirement despite being physically present in Canada for less than 1,095 days during the relevant period if the applicant demonstrated that, despite his absences, Canada was the place where he "regularly, normally or customarily lives" or, in other words, that he had "centralized his ... mode of existence" in Canada - The Minister of Citizenship and Immigration applied for judicial review - The Federal Court allowed the application - The Citizenship Judge also incorrectly assumed that Vijayan had met the physical presence threshold - This finding was premised on: (1) an unexplained reduction of the declared absences, (2) the attribution of an internally inconsistent duration to the undeclared absences and (3) possible unstated counting of presences which pre-dated the relevant period - The Citizenship Judge used his finding that Vijayan had met the physical presence test as an alternative basis for his decision - His erroneous determination that there was no shortfall influenced his Koo analysis - He never stated that he would have found Vijayan eligible for citizenship if there had been a shortfall - Further, he failed to engage with contradictory evidence when giving his decision - The Citizenship Judge should have queried whether Vijayan lived a life split between two or more countries - See paragraphs 51 to 63 and 82 to 89.

Aliens - Topic 2525

Naturalization - Qualifications - Residence - Vijayan, a citizen of India and permanent resident of the United Arab Emirates, was granted Canadian citizenship - The Minister of Citizenship and Immigration applied for judicial review - The Federal Court allowed the application - The court held that "... the Citizenship Judge assessed the evidence unreasonably where there were omissions in the citizenship application which only came to light at the hearing. Even if [Vijayan] did not contradict himself, there was no corroborating evidence as to the duration of his undeclared absences. It was not open to the Citizenship Judge to draw arbitrary assumptions from [Vijayan's] testimony, so as to relieve him of his burden to substantiate his application for citizenship." - See paragraphs 60 to 63.

Aliens - Topic 4064

Practice - Judicial review and appeals - Judicial review - Time for - Extension of - Vijayan, a citizen of India and permanent resident of the United Arab Emirates, was granted Canadian citizenship - The Minister of Citizenship and Immigration applied for judicial review - At issue, inter alia, was whether an extension of time should be granted - The Federal Court stated that it had to decide the matter even though leave had been granted, since the order granting leave was silent on whether an extension of time was appropriate - The court granted an extension - The Citizenship Judge rendered the decision under review on June 30, 2014 - At that time, the Citizenship Act gave the Minister 60 days to appeal - The Minister's notice of appeal would have been due on or before August 29, 2014 - However, on August 1, 2014, a legislative amendment came into force which provided that a notice of application for leave had to be filed within 30 days of the decision - Due to an administrative error, the Minister's file reflected the deadlines of the Act at the time the decision was rendered - As a result, the notice of application for leave was filed on August 14, 2014 - The Minister met the four part conjunctive test set out in Canada (Attorney General) v. Hennelly (1999 F.C.A.) by demonstrating: (1) a continuing intention to pursue the application; (2) that the application had some merit; (3) that no prejudice to the other party arose as a result of the delay; and (4) that a reasonable explanation for the delay existed - See paragraphs 42 to 50.

Cases Noticed:

Atwani v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 835; 2011 FC 1354, refd to. [para. 3].

Canada (Minister of Citizenship and Immigration) v. Rahman (2013), 445 F.T.R. 32; 2013 FC 1274, refd to. [para. 20].

Canada (Minister of Citizenship and Immigration) v. Al-Showaiter, [2012] F.T.R. Uned. 140; 2012 FC 12, refd to. [para. 20].

Chowdhury v. Canada (Minister of Citizenship and Immigration) (2009), 347 F.T.R. 76; 2009 FC 709, refd to. [para. 20].

Canada (Minister of Citizenship and Immigration) v. Zhou, [2008] F.T.R. Uned. 670; 2008 FC 939, refd to. [para. 20].

Koo, Re (1992), 59 F.T.R. 27 (T.D.), refd to. [para. 29].

Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.), appld. [para. 45].

Deng v. Canada (Minister of Citizenship and Immigration) (2009), 387 N.R. 170; 2009 FCA 59, refd to. [para. 46].

Papadogiorgakis, Re, [1978] 2 F.C. 208; 88 D.L.R.(3d) 243 (T.D.), refd to. [para. 52].

Pourghasemi, Re (1993), 62 F.T.R. 122; 19 Imm. L.R.(2d) 259 (T.D.), refd to. [para. 52].

Hao v. Canada (Minister of Citizenship and Immigration) (2011), 383 F.T.R. 125; 2011 FC 46, refd to. [para. 52].

Canada (Minister of Citizenship and Immigration) v. Jreige (1999), 175 F.T.R. 250 (T.D.), refd to. [para. 56].

Canada (Minister of Citizenship and Immigration) v. Pereira (2014), 456 F.T.R. 287; 2014 FC 574, refd to. [para. 61].

Aguebor v. Ministre de l'Emploi et de l'Immigration (1993), 160 N.R. 315 (F.C.A.), refd to. [para. 64].

Lin v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 759; 2008 FC 1052, refd to. [para. 64].

Fatih v. Canada (Minister of Citizenship and Immigration) (2012), 415 F.T.R. 82; 2012 FC 857, refd to. [para. 64].

Lubana v. Canada (Minister of Citizenship and Immigration) (2003), 228 F.T.R. 43; 2003 FCT 116, refd to. [para. 64].

Martinez-Caro v. Canada (Minister of Citizenship and Immigration) (2011), 391 F.T.R. 138; 2011 FC 640, refd to. [para. 64].

Njeri v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 171; 2009 FC 291, refd to. [para. 65].

Canada (Minister of Citizenship and Immigration) v. Baron (2011), 388 F.T.R. 261; 2011 FC 480, refd to. [para. 65].

Canada (Minister of Citizenship and Immigration) v. Dhaliwal, [2008] F.T.R. Uned. 554; 2008 FC 797, refd to. [para. 66].

Canada (Minister of Citizenship and Immigration) v. Elzubair, [2010] F.T.R. Uned. 176; 2010 FC 298, refd to. [para. 71].

Medel v. Minister of Employment and Immigration, [1990] 2 F.C. 345; 113 N.R. 1 (F.C.A.), dist. [para. 75].

Baro v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 877; 2007 FC 1299, dist. [para. 75].

Osisanwo et al. v. Canada (Minister of Citizenship and Immigration) (2011), 398 F.T.R. 55; 2011 FC 1126, dist. [para. 75].

Canada (Minister of Citizenship and Immigration) v. Anderson, [2010] F.T.R. Uned. 471; 2010 FC 748, refd to. [para. 82].

Canada (Minister of Citizenship and Immigration) v. Mueller, [2009] F.T.R. Uned. 650; 2009 FC 1066, refd to. [para. 82].

Canada (Minister of Citizenship and Immigration) v. Sadek et al., [2009] F.T.R. Uned. 353; 2009 FC 549, refd to. [para. 82].

Canada (Minister of Citizenship and Immigration) v. Willoughby (2012), 408 F.T.R. 213; 2012 FC 489, refd to. [para. 87].

Canada (Minister of Citizenship and Immigration) v. Camorlinga-Posch (2009), 347 F.T.R. 37; 2009 FC 613, refd to. [para. 88].

Counsel:

Christopher Ezrin, for the applicant;

Matthew Jeffery, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the applicant;

Matthew Jeffery, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on February 11, 2015, by Mosley, J., of the Federal Court, who delivered the following decision, at Ottawa, Ontario, on March 9, 2015.