Date: 20100319
Docket: T-1382-09
Citation: 2010 FC 323
Ottawa, Ontario, March 19, 2010
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Applicant
and
RAZIEH
JEIZAN
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
appeal by the Minister of Citizenship and Immigration (the Minister) pursuant
to subsection 14(3) of the Citizenship Act, R.S.C. 1985, c. C-29, from
the decision of a Citizenship Judge, dated June 19, 2009, approving the
application for Canadian citizenship made by Razieh Jeizan (the Respondent).
I. Background
[2]
The
Respondent is a citizen of Iran. She became a permanent
resident of Canada on March 10, 2001. She lives
in Toronto in a house owned by her husband
and one of their sons. Four of her children are Canadian citizens. Her two
other children and her husband have all applied for citizenship.
[3]
She
applied for Canadian citizenship on March 13, 2006. Her initial application,
which she says one of her sons helped complete, indicated that she had
accumulated 185 days of absence from Canada
in the four years preceding her application. However, in a residency
questionnaire submitted, along with supporting documents, in response to a
request from Citizenship and Immigration Canada, she indicated having been
absent for 630 days, and present for 830. Her initial application, she said,
was mistaken.
[4]
The
supporting documents submitted with the Respondent’s residency questionnaire
included a copy of her passport, a hospital bill in her name, various financial
statements and bills in her husband’s and son’s names, as well as generic
receipts.
[5]
The
Respondent was interviewed by the Citizenship Judge on June 8, 2009. Upon
request, she submitted a number of additional documents in the following days:
letters from her bank, her doctor, a community association in the activities of
which she participated, as well as a letter signed by her husband confirming
part-time employment in her husband’s business.
II. Decision under review
[6]
On June
19, 2009, Citizenship Judge Gill issued his decision finding that the
Respondent had complied with paragraph 5(1)(c) of the Citizenship Act
and approving the Respondent’s application for citizenship. His reasons
consist of one hand-written paragraph on the “Notice to the Minister” form. It
reads, in its entirety, as follows:
+55. After personal interview, reviewing
the relevant passports, family presence in Canada, owning house, the reasons
for travel out of Canada being family emergencies, I am satisfied that even
though client is a few days short of the 1095 required, she has indeed set up
residence in Canada and has maintained it. Hence meets the residence
requirements of the Act.
Certified Tribunal Record, Notice to the
Minister of the Decision of the Citizenship Judge, p. 19.
[7]
Following
the Citizenship Judge’s decision, the file was forwarded to a Citizenship
Official for further processing. Part II of the form (“Notice to the Minister
of the Decision of the Citizenship Judge”) indicates that after the citizenship
application is approved by the judge, a Citizenship Official must review the
decision and formally grant citizenship.
[8]
On July
10, 2009, the Citizenship Official advised the Respondent by letter that she
was required to provide further information: an explanation for her absences
from Canada, any passport she may have
had for the period from February 2006 to April 2007, and Notices of Tax
Assessment for the years 2003-2006.
[9]
On July
24, 2009, the Respondent sent a letter to Citizenship and Immigration Canada
explaining her absences. She stated that her visits to Iran were for family emergencies (the illness
and deaths of her mother and brother) and family events (the weddings of her
sons and the birth of her grandchild). She stated she had not had a passport
from 2006 to 2007. She added she did not have Notices of Tax Assessment for
the years 2003-2006 because she had not filed taxes those years due to lack of
income.
[10]
Following
the Respondent’s response, the Citizenship Official initiated the process of
appealing the decision of the Citizenship Judge.
III. Issues
[11]
This
appeal raises two main issues:
a. Did the citizenship judge
provide adequate reasons for his decision?
b. Did the Respondent meet the
residence requirement of the Citizenship Act?
IV. Analysis
[12]
The
question of whether or not an applicant for citizenship has met the residency
requirements of the Act is a question of mixed fact and law. Therefore, the
standard of review is reasonableness. Both parties agree that this is the
applicable standard, and there is indeed ample jurisprudence to that effect:
see, for example, Zhang v. Canada (Minister of Citizenship and Immigration), 2008 FC 483, [2008] F.C.J.
No. 603 at para. 7; Ishfaq v. Canada (Minister of Citizenship and Immigration.), 2008 FC 477, [2008] F.C.J.
No. 598 at para. 4; Canada (Minister of Citizenship and
Immigration) v.
Arastu, 2008 FC 1222, [2008] F.C.J. No. 1561 at paras. 16-21.
[13]
When
reviewing a decision on the standard of reasonableness, the Court should only
intervene if the decision falls outside the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law”: Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] S.C.J. No. 9 at para. 47.
A. Did the Citizenship Judge Provide Adequate
Reasons for his Decision?
[14]
The
decision of a Citizenship Judge to approve or deny an application for
citizenship must be accompanied by reasons. This is set out in subsection 14(2) of
the Citizenship Act:
|
14.
Consideration by citizenship judge
Advice to
Minister
(2) Forthwith after making a determination
under subsection (1) in respect of an application referred to therein but
subject to section 15, the citizenship judge shall approve or not approve the
application in accordance with his determination, notify the Minister
accordingly and provide the Minister with the reasons therefor.
|
14.
Examen par un juge de la citoyenneté
Information
du ministre
(2) Aussitôt après avoir statué
sur la demande visée au paragraphe (1), le juge de la citoyenneté, sous
réserve de l’article 15, approuve ou rejette la demande selon qu’il conclut
ou non à la conformité de celle-ci et transmet sa décision motivée au
ministre.
|
[15]
The
Minister argues that the Citizenship Judge failed to discharge his duty to
provide adequate reasons. In particular, it is submitted that he failed to
indicate which residency test he applied and why the Respondent satisfied it,
and to address the insufficiency of the Respondent’s evidence.
[16]
The
Respondent recognizes that the Citizenship Judge did not explicitly state which
residency test he was using. However, she submits that it is clear that he did
not apply the strict physical presence test elaborated in Pourghasemi (Re)
(1993), 19 Imm. L.R. (2d) 259, [1993] F.C.J. No. 232, and it is “likely” that
he was not applying the six-factor analysis of Koo Re, [1993] 1 F.C. 286, [1992] F.C.J. No. 1107 (Koo).
Accordingly, he must have applied the other available test, developed in Re
Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.), and indeed the Respondent submits
that the factual considerations enumerated in Citizenship Judge Gill’s decision
virtually mirror the test in Re Papadogiorgakis, above.
[17]
Reasons
for decisions are adequate when they are clear, precise and intelligible and
when they state why the decision was reached. Adequate reasons show a grasp of
the issues raised by the evidence, allow the individual to understand why the
decision was made and allow the reviewing court to assess the validity of the
decision: see Lake v. Canada (Minister of Justice), 2008
SCC 23, [2008] S.C.J. No. 23 at para. 46; Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545
(F.C.A.); VIA Rail Canada Inc. v. National Transportation
Agency, [2001] 2 F.C. 25 (F.C.A.), [2001] 2 F.C. 25 (C.A.), at para. 22; Arastu,
above, at paras. 35-36.
[18]
At the
very least, the reasons for a Citizenship Judge’s decision should indicate
which residency test was used and why that test was or was not met: see Canada (Minister of Citizenship and Immigration) v. Behbahani,
2007 FC 795, [2007] F.C.J. No. 1039 at paras. 3-4; Eltom v. Canada (Minister of Citizenship and Immigration), 2005 FC 1555, [2005] F.C.J.
No. 1979 at para. 32; Gao v. Canada (Minister of Citizenship and Immigration), 2003 FCT 605, [2003] F.C.J.
No. 790 at para. 22; Gao v. Canada (Minister of Citizenship and Immigration), 2008 FC 736, [2008] F.C.J.
No. 1030 at para. 13.
[19]
The
reasons in this case are very similar to those considered by Justice Danièle
Tremblay-Lamer in Canada (Minister of Citizenship and
Immigration) v.
Wong, 2009 FC 1085, [2009] F.C.J. No. 1339 which also consists of a
single hand-written paragraph on the “Notice to the Minister” form. Justice
Tremblay-Lamer held that those reasons, which also failed to state which test
the citizenship judge was applying, were insufficient. She explained, at
paragraphs 17-18, that:
[i]n a recent case, Canada (Minister
of Citizenship and Immigration) v. Mahmoud, 2009 FC 57, at
par. 6, Justice Roger Hughes noted that, because the Minister – or, I would
add, a citizenship applicant – has no remedy other than an appeal to this
Court, and citizenship must be granted in the event of a positive
recommendation by a citizenship judge, “the provision of reasons by the
citizenship judge assumes a special significance. The reasons should be
sufficiently clear and detailed so as to demonstrate to the Minister that all
relevant facts have been considered and weighed appropriately and that the
correct legal tests have been applied.”
Needless to say, the citizenship judge’s
reasons ought to speak for themselves. The fact that the Respondent has felt
the need to explain the citizenship judge’s reasoning in an affidavit is my
view, a clear indication that the latter’s reasons were inadequate.
[20]
A
decision-maker’s reasoning should not require additional explanations. In the
case at bar, it is the Respondent’s counsel who explains the Citizenship
Judge’s reasoning in her memorandum of fact and law, speculation by way of
counsel’s argument is not different than speculation by way of a party’s
affidavit: Alem v. Canada (Minister of Citizenship and
Immigration), 2010 FC 148, [2010] F.C.J. No. 176 at para. 19.
[21]
Moreover,
the reasons do not indicate a grasp of the issues raised by the evidence, in
this case the absence of sufficient evidence produced by the Respondent to
establish her residency in Canada. The Citizenship Judge went
as far as to say that the Respondent was “a few days short of the 1095
required”, whereas the evidence shows that she was 265 days short of the
legislative requirement. This is clearly not indicative of a thorough
assessment of the Respondent’s citizenship application.
[22]
I am
therefore of the view that the reasons provided by the Citizenship Judge are
inadequate; this apparent lack of diligence is most unfortunate, since it
caused the Respondent, whom he thought deserving to be granted citizenship, the
uncertainty and the expense of the present litigation.
B. Did the Respondent Meet the Residence Requirement
of the Citizenship Act?
[23]
Given my
conclusion on the issue of the adequacy of reasons, I cannot consider the
reasonableness of the Citizenship Judge’s finding that the Respondent met the
residency requirement of the Citizenship Act. As the Supreme Court
explains in an oft-quoted passage in Dunsmuir, above, at para. 47,
“reasonableness [of a decision] is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process”. The reasons provided by the citizenship judge do not justify his
decision, and are not transparent and intelligible.
[24]
This does
not end the matter, however, because as Justice Douglas Campbell held in Seiffert
v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1072, [2005] F.C.J. No. 1326 this Court may, in appropriate situations,
find that a citizenship applicant has met the requirements of the Citizenship
Act and is entitled to become a Canadian citizen. That being said, Justice
Tremblay-Lamer cautioned in Wong, above, that the Court will only do so
“in exceptional cases” (para. 25) where the evidence is “clear cut” (para. 26).
[25]
Paragraph
5(1)(c) of the Citizenship Act specifically provides that an applicant
for citizenship may be absent from Canada
for one year during the four-year period to the date of his or her application
for citizenship. This means that an applicant must be resident in Canada for a minimum of three years,
or 1095 days, during the relevant period.
[26]
Because
the Citizenship Act does not define “residence” or “resident” and
precludes appeals to the Federal Court of Appeal, the jurisprudence of this
Court is divided as to the legal test an applicant must meet in order to
satisfy the residency requirement of paragraph 5(1)(c). As a result, three
different tests for residency have emerged, to which I have already referred in
paragraph 16 of these reasons. So long as the Citizenship Judge adopts one of
these three tests, clearly identifies the test adopted and properly applies the
facts of the case to the chosen approach, this Court will not intervene: see,
for example, Lam v. Canada (Minister of Citizenship and
Immigration), [1999] 164 F.T.R. 177 (F.C.T.D.), [1999] F.C.J. No. 410 at
paras. 11-14; So v. Canada (Minister of Citizenship and Immigration), 2001 FCT 733, [2001] F.C.J.
No. 1232 at paras. 27-30; Rizvi v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1641, [2005] F.C.J. No. 2029 at paras. 11-12.
[27]
The
Respondent’s declared absences of 630 days indicates that she could not satisfy
the strict residency test set out in Re Pourghasemi, above. The Respondent
was present in Canada for only 830 days, when 1095
days are required under the test. Those absences were confirmed by the dates
of Canadian entry and Iranian exit stamps in her passport. It is indisputable
that the Respondent did not meet the strict residency test in Re Pourghasemi
based on her own passport evidence.
[28]
The Koo
test was also not met by the Respondent’s evidence. The Koo test
involves the detailed assessment of six separate factors. There is no
indication in the brief reasons provided by the Citizenship Judge that such a
comprehensive analysis was carried out on this citizenship application.
Additionally, Koo recognizes that the extent of the applicant’s physical
presence in Canada is a factor of “primary importance”.
As it is clear from the record that the Respondent spent over a year and eight
months absent from Canada during the four-year period,
the Citizenship Judge could not reasonably have considered this factor to be
satisfied. As for whether the Respondent established that Canada is where she
“regularly, normally or customarily lives” or has “centralized her mode of
existence”, the evidence provided by the Respondent to support her citizenship
application falls well short in terms of documentary proof. The evidence
provided by the Respondent was simply insufficient to establish that Canada is her primary home.
[29]
There
remains the Re Papadogiorgakis test, according to which one way of
determining if an applicant for Canadian citizenship meets the requirements of
s. 5(2) of the Citizenship Act is to assess the quality of an
applicant’s attachment to Canada. If an applicant
demonstrates a sufficient attachment and intention to establish a permanent
home in Canada, temporary absences can be
counted as periods of residence in Canada.
[30]
It is far
from clear from the evidence that the Respondent would qualify under this
test. There are deficiencies in the Respondent’s evidence that cast doubt on
her intention to establish a permanent home in Canada. First, the Respondent exceeded the
allowed absences from Canada by a significant margin. The
Respondent explains that her absences from Canada stemmed from family
commitments, such as visiting her ill brother and mother, both of whom have now
died, and visiting Iran for her sons’ weddings and
the birth of her grandchild. But there is no explanation as to why she had to
stay for more than four months in Iran
on each of her sons’ weddings, nor is there any reason given for her six months
stay in 2003.
[31]
In addition,
the Respondent has limited documentary proof of residency. Her home is
registered in her husband and son’s names. Her bank account is joint with her
husband. She did not provide the tax returns requested by Citizenship and Immigration
Canada because she states she did not file them due to lack income. Her only
proof of part-time employment was a letter provided by her husband attesting to
her work in his restaurant. Her proof of participation in community activities
was limited to a letter from a friend and a letter form the Canadian Mandaean
Association that fails to outline any details of her actual involvement. She
provided grocery and store receipts, but there is no indication that she is the
purchaser of the items. Also, ten of the fifteen receipts she provided to
establish her presence in Canada are dated on days that she has admitted she
was not present in Canada.
[32]
It may
well be, as the Respondent explains in her letter to Citizenship and
Immigration Canada dated July 24, 2009, that in her cultural traditions family
property and bank accounts are not in a women’s name. But the Citizenship
Judge failed to address this argument, and the Court is left to speculate as to
the weight given to this explanation in the assessment of her attachment to Canada. While the Citizenship Judge
was satisfied, after his interview of the Respondent, that she qualified for
citizenship, he failed to explain why this was the case. Thus, even though a
new interview with the Respondent may result in the same decision being taken
with respect to her application, this is not a “clear cut” case where it would
be appropriate for the Court to use its appeal powers to reach its own decision
on the issue of residency. The Minister is entitled to an explanation of a
decision with which he disagrees. The appeal must therefore be allowed.
ORDER
THIS COURT ORDERS that the appeal be allowed,
without costs.
"Yves
de Montigny"
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