Docket: T-411-11
Citation: 2012 FC 12
Ottawa, Ontario, January 4,
2012
PRESENT: The Honourable Mr. Justice Near
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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ABDULDAEM AL-SHOWAITER
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an appeal of the decision of a Citizenship Judge under subsection 14(5) of
the Citizenship Act, RSC, 1985, c C-29 (the Act). The Applicant
(The Minister of Citizenship and Immigration) contests the granting of
citizenship to the Respondent (Abduldaem Al-Showaiter) based on a failure of
the Citizenship Judge to provide sufficient reasons and a lack of evidence to
conclude that the residency requirements in subsection 5(1)(c) of the Act
were met.
[2]
For
the following reasons, this appeal is allowed.
I. Background
[3]
The
Respondent is a citizen of Yemen. On January 23, 2005, he entered Canada and was admitted
as a permanent resident.
[4]
On
July 14, 2008, the Respondent applied for citizenship. He listed 153 days of
absence from Canada as a result
of a business trip and family visits. He was therefore physically present in Canada for 1114
days. This is above the 1095 day minimum requirement.
[5]
The
Respondent noted that he rented one residence in Canada and owned
another. He also owned three houses and lands in Yemen.
[6]
He
indicated “retired” for January 2005 to April 2008 and “supervisor” for
Cobequid Convenience from April 2008 to present. He claimed to have terminated
employment or business outside Canada before becoming a permanent resident.
[7]
The
Residence Questionnaire referred to two additional absences to those in his
original application. He stated that he stayed in “Sanaa-Yemen-home” with his
daughter during these absences.
[8]
In
a memorandum dated June 16, 2010, the Applicant expressed concerns that the
Respondent had not been living in Canada as required. There was
an issue related to his employment, given documents listing his name as
“General Project Leader, Restructuring Tax Authority, Yemen Tax Authority” and
“Director General, Tax Authority, Sana’a” for two United Nations
Conferences on Trade and Development on October 30 – November 1, 2007 and November
21-23, 2005.
[9]
The
Applicant therefore recommended that the Respondent be referred to a hearing
before a Citizenship Judge to determine if he had been living in Canada during the
residency period.
[10]
On
January 13, 2011, the Respondent’s application was approved by the Citizenship
Judge in a “Notice to the Minister of the Decision of the Citizenship Judge.”
II. Issues
[11]
This
appeal raises the following issues:
(a) Did
the Citizenship Judge provide adequate reasons for approving the Respondent’s
application?
(b) Did
the Citizenship Judge err in finding that the Respondent met the residency
requirements under subsection 5(1)(c) of the Act?
III. Standard
of Review
[12]
Adequacy
of reasons is an aspect of procedural fairness requiring the correctness
standard (see Abou-Zahra v Canada (Minister of Citizenship and Immigration),
2010 FC 1073, [2010] FCJ no 1326 at para 16; Chowdhury v Canada (Minister of
Citizenship and Immigration), 2009 FC 709, [2009] FCJ no 875 at
para 29; Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC
12, 2009 CarswellNat 434 at para 43).
[13]
By
contrast, the applicable standard of review for a citizenship judge’s decision
that an applicant meets the residency requirement is a question of mixed fact
and law requiring the reasonableness standard (Pourzand v Canada (Minister of
Citizenship and Immigration), 2008 FC 395, 2008 CarswellNat
831 at para 19).
[14]
As
articulated in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para 47, reasonableness is “concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process” as well as “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”.
IV. Analysis
A. Did
the Citizenship Judge Provide Adequate Reasons for Approving the Respondent’s Application?
[15]
The
Applicant has raised concerns regarding the sufficiency of the Citizenship
Judge’s reasons. There is a statutory requirement to provide these reasons under
subsection 14(2) of the Act:
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Consideration
by citizenship judge
14. (1) An
application for
(a) a grant of
citizenship under subsection 5(1) or (5),
[…]
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.
[…]
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.
Notice to
applicant
(3) Where a
citizenship judge does not approve an application under subsection (2), the
judge shall forthwith notify the applicant of his decision, of the reasons
therefor and of the right to appeal.
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Examen
par un juge de la citoyenneté
14.
(1) Dans les soixante jours de sa saisine, le juge de la citoyenneté statue
sur la conformité — avec les dispositions applicables en l’espèce de la
présente loi et de ses règlements — des demandes déposées en vue de :
a)
l’attribution de la citoyenneté, au titre des paragraphes 5(1) ou (5);
[…]
[…]
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.
Information
du demandeur
(3)
En cas de rejet de la demande, le juge de la citoyenneté en informe sans
délai le demandeur en lui faisant connaître les motifs de sa décision et
l’existence d’un droit d’appel.
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[16]
The
Applicant submits that the reasons do not meet the requirements established in
the citizenship context in Canada (Minister of Citizenship and Immigration)
v Jeizan, 2010 FC 323, [2010] FCJ no 373 at para 17. Reasons are “adequate
when they are clear, precise and intelligible and when they state why the
decision was reached.” They must also “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.”
[17]
The
Applicant points out that there are no reasons of any kind in the “Notice to
the Minister of the Decision of the Citizenship Judge.” It is acknowledged
that the handwritten notes to questions from the “Residency Questions Form”
would be part of the decision if prepared by the Citizenship Judge.
[18]
Nevertheless,
the Applicant insists that these are answers to questions, as opposed to
reasons. The notes do not demonstrate that the Citizenship Judge addressed the
statutory requirements or grasped the issues raised by the evidence. The
reasons are not adequate if they require additional explanation (see Jeizan,
above at para 20).
[19]
The
Respondent maintains that the procedures regarding reasons are relatively
general. The guidelines only suggest they should be provided when applications
are not approved. The “Notice to the Minister of the Decision of the
Citizenship Judge” is an acceptable form used to check the boxes indicating
compliance with the statutory requirements and list the number of days for
residency. There is no obligation to fill in the portion dealing with
“Reasons.”
[20]
According
to the Respondent, the handwritten notes from the Citizenship Judge also form a significant
part of the decision, as partly conceded by the Applicant. This is based on
recognition in Vancouver International Airport Authority et al v Public
Service Alliance of Canada, 2010 FCA 158, [2010] FCJ no 809 at para 17 that
“[i]nformation about why an administrative decision maker ruled in the way it
did can sometimes be found in the record of the case and the surrounding
context.” Given that this Court has also accepted a mere restatement of the
information contained in the “Notice” as sufficient reasons (see Nulliah
v Canada (Minister of
Citizenship and Immigration), 2006 FC 1423, [2006] FCJ no 1789), the
handwritten answers to questions should similarly meet the standard.
[21]
Regardless,
I am not convinced that the reasons provide sufficient clarity, precision and
intelligibility as prescribed by Jeizan, above. The reasons should at
the very least 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] FCJ no 1039 at paras 3-4). This is particularly
so given the concerns raised regarding the Respondent’s potential employment
with a foreign government during the relevant period.
[22]
Admittedly,
the answers to questions note that “When I asked about his participation in the
conferences in Genevie. He was listed in 2005 & 2007 but did not attend. He
attended in 2001 & 2003.” There is, however, no indication as to how this
response, along with the other evidence provided, was assessed to satisfy the
Citizenship Judge that the residency requirements were met. The underlying
rationale for the decision and the test applied remain unclear.
[23]
As
a consequence, I must find that the Citizenship Judge failed to provide
adequate reasons for approving the Respondent’s application.
B. Did
the Citizenship Judge Err in Finding that the Respondent Met the Residency
Requirements under Subsection 5(1)(c) of the Act?
[24]
Given
my conclusion with respect to the adequacy of reasons, I am not required to
conduct an in-depth analysis on the reasonableness of the Citizenship Judge’s
decision. I do, however, wish to acknowledge some of the arguments raised by
the parties.
[25]
The
Applicant claims that it is not clear what test was employed by the Citizenship
Judge. There were discrepancies in the employment history of the Respondent
that could have a significant impact on the decision. There is no clear ruling
on why the response to the question provided a satisfactory explanation.
[26]
According
to the Applicant, the handwritten notes ultimately raise more issues than they
resolve and provide almost no insight into the Citizenship Judge’s approach. They
claim that this is a situation similar to Canada (Minister of
Citizenship and Immigration) v Salim, 2010 FC 975, [2010]
FCJ no 1219 where questions were raised by the Minister regarding the
application and it was not adequately explained why the Respondent was
nonetheless approved.
[27]
The
Respondent insists that the Applicant has tried to impose the constructive
residence test where the strictest physical presence requirement was met. The
significance of the residency tests is being overstated in this case. She
contends that one test may make more sense in a particular instance and that a
determination based on physical presence does not require elaboration as long
as the analysis is purely quantitative and the various tests are not blended
(see Farrokhyar v Canada (Minister of Citizenship and Immigration), 2007
FC 697, [2007] FCJ no 946 at paras 13-15).
[28]
In
this instance with the lack of adequate reasons, it is far from certain how the
Citizenship Judge arrived at the conclusion that the residency requirements
were met based on the evidence. This complicates any assessment as to the
reasonableness of that conclusion.
[29]
I
note that the onus is on individuals seeking status to provide sufficient
evidence to demonstrate to the citizenship judge that they have satisfied the
residency requirement in the relevant period (Rizvi v Canada (Minister of
Citizenship and Immigration), 2005 FC 1641, 2005 CarswellNat 4153
at para 21). A citizenship judge is permitted to rely on the strict physical
presence test, so long as this intention is made clear in the reasons for doing
so.
V. Conclusion
[30]
Given
the ongoing discussion concerning citizenship cases, it would be of great
assistance to the Court if citizenship judges state clearly in one or two
sentences which test they are using and explain their reasons for arriving at a
particular conclusion. The detail required in these reasons will vary given
the test employed and the surrounding context. However, even where it can be
inferred that the physical presence in Canada test (which
generally, in my view, is the test most in line with the legislation) is being
used, citizenship judges must state that this is the case. Citizenship judges
should also proceed to explain in more or less detail depending on the facts of
the case why they either accepted or rejected the evidence placed before them.
[31]
Furthermore,
where a Notice to the Minister of the Decision of the Citizenship Judge Form is
used, the mere “ticking” off the boxes without any further explanation is
insufficient as is the case in this matter. In some cases, supplementary notes
made by judges may sufficiently illustrate their reasoning but it would be far
preferable if the test utilized and an explanation as to why a judge has
accepted the evidence of physical presence were to appear on the face of the
decision. If the Form needs to be amended to make this more convenient for the
citizenship judge court then such an amendment may wish to be considered,
though I do note that there already exists a box for this purpose entitled
“Reasons.”
[32]
Since
the Citizenship Judge did not provide adequate reasons for approving the
Respondent’s application in this instance, the appeal is allowed and the matter
is sent back to a different citizenship judge for re-determination.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this appeal is allowed and the matter is sent back
to a different Citizenship Judge for re-determination.
“ D.
G. Near ”
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