Abdollahi-Ghane v. Canada (Attorney General), 2004 FC 741

                                                                                                                                  Date: 20040521

                                                                                                                             Docket: T-1049-03

Citation: 2004 FC 741

Ottawa, Ontario, the 21st day of May 2004

PRESENT:      THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

NAHID ABDOLLAHI-GHANE

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]         Just as it takes an agglomeration of separate trees to constitute a forest, a set of defined components are required to constitute an adequate decision. The perennial question remains: What defined components constitute a sufficiently reasoned decision? Simply, a sufficiently reasoned decision necessitates an understanding of the whole that is adequately defined.

ISSUE TO BE RESOLVED

[2]         This is an appeal pursuant to subsection 14(5) of the Citizenship Act^[1] from a decision dated May 29, 2003, by a citizenship judge (the judge) denying the application for Canadian citizenship filed by the applicant on the ground that she did not fulfill the requirements set out in paragraphs 5(1)(c) and (e) of the Act.

RELIEF SOUGHT

[3]         The applicant, Nahid Abdollahi-Ghane, is asking the Court to order that citizenship be granted to her.

[4]         The Attorney General (the respondent) submits that such relief cannot be granted to the applicant through an appeal under Rule 300 of the Federal Court Rules, 1998.^[2] The respondent is right.

FACTS

[5]         Nahid Abdollahi-Ghane is an Iranian woman, 59 years of age, who arrived in Canada on June 21, 1996, as a permanent resident.

[6]         She applied for citizenship in July 1999. She was refused in May 2001 on the ground of non-compliance with the residence criteria.

[7]         Nahid AbdollahiGhane reapplied for citizenship in July 2001.

MERITS

[8]         The judge found that the applicant did not satisfy paragraphs 5(1)(c) and (e) of the Act. In his decision, the judge said:

The applicant has 1460 material days. She admits that she was out of Canada 126 days. This grants her 1334 days of physical presence in Canada.

I have serious doubts as to the veracity of her dates and figures.^[3]

He examined her tax returns, her work outside the home, whether she is a member of any associations or organizations, her bank account and her purchase receipts. He noted that she did not have a Quebec driver's licence but still had one in Iran. He found that this evidence did not show that the applicant had resided in Canada for 1,095 days.^[4]

[9]         The judge also found that the applicant did not have a sufficient knowledge of Canada, since "she correctly answered but eight of the 19 questions- 57.8 percent."^[5]

ISSUES

[10]       What is the standard of review?

[11]       Did the judge err in finding that the applicant did not meet the requirements of residence in Canada?

[12]       Did the judge err in finding that the applicant did not have an adequate knowledge of Canada and the responsibilities and privileges of Canadian citizenship?

ANALYSIS

What is the standard of review?

[13]       The respondent submits that the standard of review of findings of fact is the patently unreasonable standard.^[6] The issue is one of mixed fact and law, because it concerns the application of the law to the facts; however, since the question is primarily factual, the standard of review is patent unreasonableness, as the respondent argues.^[7]

Did the judge err in finding that the applicant did not meet the requirements of residence in Canada?

[14]       In his decision, the judge found that the applicant was not in Canada for the duration required by the Act, without referring to her passport. Viewing the evidence as a whole, the reason for this omission becomes evident. A citizenship officer, as well as the judge, analyzed the evidence. She wrote a memorandum to the judge and noted that in her application for citizenship the applicant said she was absent from Canada for 150 days while in her proof of residence she said she was absent from Canada for 209 days. The immigration officer also pointed out that the applicant declared certain absences in her application for citizenship that were not confirmed by travel dates stamped in her passport. She asked whether the applicant might have had two passports.

[15]       The Court finds that the judge accepted the immigration officer's conclusion that the passport did not show how much time the applicant was absent from Canada, so he referred to other evidence in determining whether it established that the applicant was in Canada at least 1,095 days out of 1,460.

[16]       The finding that there were inconsistencies and contradictions in the evidence presented by the applicant is problematic. The applicant submits that there are no inconsistencies between her application for citizenship and her proof of residence. In her citizenship application, the applicant said she was absent from Canada for 152 days and not 150 days as the immigration officer found, or 126 days as the judge found. The applicant travelled abroad after she had filled out the citizenship application, but before she had completed her proof of residence.^[8] This explains why there is a difference between the two forms. This argument is persuasive.

[17]       The immigration officer also erred in stating that there were several inconsistencies between the dates on which the applicant said she was absent from Canada and the travel date stamps in her passport. The immigration officer found that there were eight trips reported in the application for citizenship that she could not reconcile with the stamps and the dates in the applicant's passport.^[9] However, in reviewing the record, the Court reconciled four travel dates that are marked in the application for citizenship and the passport.^[10] Three dates in the application for citizenship are not in her passport. One date, which was stamped in the passport, "23 JN 1998",^[11] is not written in the application for citizenship. Yet the applicant stated in her application for citizenship that she was in Iran from January 2, 1998 to January 23, 1998,^[12] and there is no stamp for that date in her passport. It is possible, therefore, that the applicant wrote January instead of June by mistake.

[18]       Since there are three inconsistencies between the applicant's citizenship application and the passport, it was open to the judge to find that he could not rely on the passport evidence. However, the judge had to have some specific information in order to draw that conclusion. The decision that the passport did not include the necessary evidence to determine how many days the applicant was in Canada over four years is therefore erroneous.

Did the judge err in finding that the applicant did not have an adequate knowledge of Canada and the responsibilities and privileges of Canadian citizenship?

[19]       The applicant and the respondent made submissions with respect to whether the judge erred when he found that the applicant did not fulfill the requirements of paragraph 5(1)(e) of the Act, but they failed to recognize that the judge erred in writing the applicant's mark. In his decision, he said the applicant had obtained eight correct replies to nineteen questions, which amounts to 57.8 percent, but eight correct replies out of nineteen amounts to 42.1 percent, not 57.8 percent. Moreover, in the notice to the Minister, the judge wrote that the applicant did not reply correctly to eight of the questions.^[13] Given the fact that if the applicant had correctly answered eleven questions the percentage would be 57.8 percent, it is probable that the applicant correctly answered eleven questions out of eighteen. From the formulation in the judge's decision, it is conceivable that the judge concluded that the applicant correctly answered eleven questions (the word "but" could be construed accordingly) but the whole matter is unclear owing to other considerations raised in addition to this one for which the analysis continues.

[20]       The applicant alleges that the judge should have explained which questions he put to the applicant, what criterion he used to evaluate the applicant and what percentage she should have received to succeed. Citing Alfonso v. Canada,^[14] the applicant argues that the judge erred in formulating his decision.

[21]       The respondent notes that it was the citizenship tribunal that refused to disclose the questionnaire when it filed the Tribunal Record in this Court. Because the applicant never objected to the refusal of the citizenship tribunal, she cannot now submit that the judge erred in failing to explain the questions put to the applicant. The Court agrees with the respondent, but nevertheless find that the judge erred in his decision that the applicant did not satisfy paragraph 5(1)(e).

[22]       Although the Court agrees with the applicant that the judge erred, the Court bases itself on reasons that differ from those presented by the applicant. The Court finds that, Alfonso is distinguishable from the case at bar. In Alfonso, Blais J. noted that the judge erred in asking the applicant questions about the four topics identified in paragraph 15(1)(c) of the Citizenship Regulations, 1993,^[15] because paragraph 15(1)(c) prescribes that the judge ask questions solely on one of the topics identified in that paragraph.^[16] The Court is not persuaded that, absent that circumstance, Blais J. would have found that the other four defects in the decision were sufficient to make the judge's decision erroneous in its formulation.

[23]       The applicant argues that the judge did not provide adequate reasons. In VIA Rail Canada Inc. v. National Transportation Agency,^[17] the Federal Court of Appeal explained the basis upon which adequate reasons are formulated; the Court stated:

The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors.^[18]

In the case at bar, the judge certainly needed to explain the criteria he used to find that the applicant had an insufficient knowledge of Canada and what percentage would have sufficed to satisfy the requirement of paragraph 5(1)(c). The judge erred by failing to provide adequate reasons.

[24]       Finally, I think that even if the judge's errors, taken individually, were not significant, they do become significant when considered cumulatively. In Haji v. Canada (Minister of Citizenship and Immigration),^[19] Pelletier J. observed:

In my view, this is to the same effect as the passages quoted from Miranda that not every error is grounds for setting aside a decision. But in this case, the errors are numerous and their cumulative effect is unknown. There comes a point at which the sheer number of errors, whether material or not, leaves one with little confidence in the soundness of the other conclusions reached by the Tribunal. It is clear that the CRDD based its decision on findings of fact made without regard to the material before it. For that reason, the decision must be set aside and the matter remitted to another panel for determination.^[20]

In the case at bar, the judge made a number of errors of fact. He found that the applicant said she was absent from Canada for 126 days when in truth she said she was absent 152 days. Furthermore, by accepting the submissions of the immigration officer, he erroneously accepted that eight trips were described in the citizenship application that were not accounted for in the passport. Finally, the judge confused the results of the replies given by the applicant to the questions about Canada. This lack of care "leaves one with little confidence in the soundness of the other conclusions reached" by the judge.

[25]       For all of these reasons, the judge's decision is set aside.

CONCLUSION

[26]       The Court sets aside the decision.

ORDER

THIS COURT ORDERS that the appeal be allowed.

                     "Michel M.J. Shore"

                                Judge

Certified true translation

Suzanne M. Gauthier, C Tr, LLL

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                            T-1049-03

STYLE:                                                NAHID ABDOLLAHI-GHANE and

ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                      MONTRÉAL, QUEBEC

DATE OF HEARING:                        MAY 19, 2004

REASONS FOR ORDER

AND ORDER:                                    THE HONOURABLE MR. JUSTICE SHORE

DATED:                                              MAY 21, 2004

APPEARANCES:

Michelle Langelier                                  FOR THE APPLICANT

Thi My Dung Tran                                 FOR THE RESPONDENT

SOLICITORS OF RECORD:

MICHELLE LANGELIER                    FOR THE APPLICANT

Advocate

Montréal, Quebec

MORRIS ROSENBERG                      FOR THE RESPONDENT

Deputy Attorney General

of Canada

Ottawa, Ontario

STATUTORY PROVISIONS