Date: 20120315
Docket: T-1186-11
Citation:
2012 FC 308
Ottawa, Ontario, March 15, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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YOUSEF
M S ABU-LOHA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Minister of Citizenship and Immigration appeals from a
decision of a Citizenship Judge made under the Citizenship Act, RSC
1985, c C-29 granting the respondent’s application for Canadian citizenship.
[2]
For the reasons that follow, the appeal is allowed.
[3]
Mr. Yousef Abu-Loha was born in Saudi Arabia and is a citizen of Jordan.
On August 28, 2004, he, his wife, and his two young sons became permanent
residents of Canada. On April 1, 2009, Mr. Abu-Loha and his wife applied for
Canadian citizenship. On May 18, 2011, the Citizenship Judge in a very brief
decision approved the respondent’s application.
[4]
The decision, a one-page form, indicates that the respondent
satisfied all the requirements under the Act. It states that he has been
physically present in Canada for a total of 1,231 days out of 1,460. In the
reasons, the Judge wrote:
After
reviewing the applicant[’s] documents on file plus the information shared with
me at the hearing on April 4th/11. Based on the balance of
probabilities I am satisfied that the applicant meets the residency criteria.
[5]
The Citizenship Judge found the respondent was away from Canada
229 days out of 1,460; that information corresponds with the respondent’s written
submissions before the Citizenship Judge found at page 6 of the Certified
Tribunal Record. However, it does not correspond with other evidence in the
Certified Tribunal Record. Specifically, six exit and entry stamps in the respondent’s
passport that were not listed in his written submissions are disclosed in the
Certified Tribunal Record and if any one of these is accurate, then the
respondent was away from Canada more than 229 days.
[6]
There is no way for this Court to determine the time-period
corresponding to those six trips (there is only one Canadian entry stamp on the
passport and it does not align with any relevant time-periods). It is possible
that the time-periods associated with those stamps resulted in the respondent
being physically outside Canada for more than the time allowed.
[7]
It is impossible to determine from the reasons and the record
whether the Citizenship Judge failed to consider the evidence of these
additional six periods of absence from Canada; whether he did consider these
absences but found that even with them the respondent physically resided in
Canada more than the minimum of 1,095 days; or whether he did consider these
absences and found that the respondent was not physically present in Canada at
least the minimum of 1,095 days but was nonetheless eligible for citizenship
through one of the other residency tests accepted in this Court’s
jurisprudence. In short, the decision is unintelligible and the appeal must be allowed.
[8]
The Minister, acknowledging that it may be that
the respondent was physically present in Canada at least 1,095 days, asked that
the application be sent back to be determined by another Citizenship Judge,
based on a complete examination of the record and the evidence of the respondent.
In these unique circumstances, that is an appropriate order.
JUDGMENT
THIS COURT’S JUDGMENT is that this appeal is allowed, the decision of the Citizenship
Judge is quashed and the respondent’s application for Canadian citizenship is
referred back to be determined by a different Citizenship Judge based on the
evidence in the application and the evidence of the respondent.
"Russel W. Zinn"
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