Date: 20090121
Docket: T-437-08
Citation: 2009 FC 57
Ottawa, Ontario, January 21,
2009
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
TAREK
ABDEL GHAFAR MAHMOUD
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an appeal brought by the Minister of Citizenship and Immigration under the
provisions of section 14(5) of the Citizenship Act R.S.C. 1985, c. C-29
from a decision of a citizenship judge dated January 17, 2008 wherein the
application for Canadian citizenship made by the Respondent Tarek Abdel Ghafar
Mahmoud was approved. For the reasons that follow, I find that the appeal is
allowed and the matter is returned for redetermination by a different
citizenship judge. No order as to costs.
[2]
The
Respondent is an adult male born outside Canada, who entered
Canada from Egypt in June,
2002 and claims to be a permanent resident of Canada. He is not
under a removal order. As such, the Respondent’s right to acquire Canadian
citizenship is governed by section 5(1) of the Citizenship Act which
states:
5. (1) The Minister shall
grant citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(c) is a permanent resident within the meaning of subsection
2(1) of the Immigration and Refugee Protection Act, and has, within the four
years immediately preceding the date of his or her application, accumulated at
least three years of residence in Canada calculated in the following manner:
(i)
for every day during which the person was resident in Canada
before his lawful admission to Canada for permanent residence the person shall
be deemed to have accumulated one-half of a day of residence, and
(ii) for every day during which the person was resident in
Canada after his lawful admission to Canada for permanent residence the person
shall be deemed to have accumulated one day of residence;
(d) has an adequate knowledge of one of the official
languages of Canada;
(e) has an adequate knowledge of Canada
and of the responsibilities and privileges of citizenship; and
(f) is not under a removal order and is not the subject
of a declaration by the Governor in Council made pursuant to section 20.
[3]
The
process by which a person such as the Respondent may apply for citizenship is
set out in sections 11 and 12 of the Citizenship Regulations, 1993
(SOR/93-246). Without repeating those regulations in full, they provide that
an application may be filed which is then reviewed by a citizenship officer.
The applicant is given opportunities to redress any apparent omissions. A
citizenship judge may require a personal appearance to require that the
applicant attend alone or with others to provide evidence under oath that may
satisfy the judge as to what otherwise may be information that is lacking.
[4]
A
citizenship judge is not a “judge” as it may be understood in the sense of a
superior Court or provincial Court judge. Section 26 of the Citizenship Act
states that any “citizen” may be a citizenship judge, no legal training or other
qualifications are apparently necessary. The power of a citizenship judge, as
set out in the Act and amplified by the Regulations, is found in section 14(2)
of the Act which is captioned “Advice to Minister” and is to approve or not
approve the application but with an important addendum “…and provide the
Minister with the reasons therefor”:
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.
[5]
This
“advice” takes the form of “approval” or “not” together with reasons therefor.
The only remedy thereafter as provided by the Citizenship Act is for an
appeal to this Court by either the Minister or the applicant under section
14(5) of the Act. The decision of this Court as provided by section 14(6)
is final:
Appeal
(5) The Minister or
the applicant may appeal to the Court from the decision of the citizenship
judge under subsection (2) by filing a notice of appeal in the Registry of the
Court within sixty days after the day on which
(a) the citizenship
judge approved the application under subsection (2); or
(b) notice was mailed
or otherwise given under subsection (3) with respect to the application.
Decision final
(6) A decision of the
Court pursuant to an appeal made under subsection (5) is, subject to section
20, final and, notwithstanding any other Act of Parliament, no appeal lies
therefrom.
[6]
Thus,
unless there is an appeal, the approval or refusal by a citizenship judge, is a
final matter as to the applicant’s Canadian citizenship. The Minister has no
further function to perform or other remedy other than an appeal. Therefore
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.
Material provided by Citizenship and Immigration Canada for the assistance of
applicants, citizenship judges and others, which material is not binding as
legal authority, but may provide guidance says in sections 1.20 and 1.26 to
1.29 of volume CP2, “Decision-Making” (CP2 Decision Making (Ottawa:
Citizenship and Immigration Canada, 2007):
1.20 Must give reasons for
decision
The decision-maker must
justify the decision.
This means that the parties
should receive a clear explanation of the reasons for the decision, how it was
reached, and the evidence that was taken into account.
Section 15 of the Citizenship
Act says there is an obligation to give reasons for a decision when a
citizenship judge non-approves an application.
Failure to give reasons for a
decision when the law requires reasons for a decision may result in reversal of
that decision.
Properly justifying a decision
makes it possible to inform the applicant of the reasons for the decision. It
also makes it possible for the applicant to consider whether or not to appeal
the decision.
…
Content of the decision
1.26 Give reasons for decision
When the judge does not
approve of an application, the judgment:
·
tells
the applicant that the application is not approved;
·
gives
full reasons for the decision;
·
presents
the reasons for the decision so the applicant or the Minister of Citizenship
and Immigration can decide whether to appeal the decision. …
1.27 What do include in
justifying the decision
The decision must include:
·
the
facts;
·
an
analysis of the facts; and
·
the
deductions from the analysis.
1.28 Conclusion not enough
Giving a conclusion and
repeating the criteria set out in the Citizenship Act is not enough.
The arguments and the evidence
must be discussed.
The judge must then show why
the decision was made, and state the evidence supporting the decision.
1.29 Elements of a decision to
refuse citizenship
The following are the elements
of a decision to refuse citizenship:
·
a
summary of evidence considered;
·
the
evidence rejected (if applicable), and reasons for rejecting the evidence;
·
findings
of fact (evidence);
·
an
explanation of the findings and how they relate to the requirements of the Act;
·
show
that the applicant has been given the two options open to him or her:
Ø submit a new application when
the applicant believes that he or she meets the requirements of the Act;
Ø appeal the decision to the
Federal Court-Trial Division within 60 days of being notified or the decision.
[7]
Justice
Russell of this court in Pourzand v. Canada (MCI), 2008 FC 395 at
paragraph 21 has characterized the failure to provide adequate reasons as a
question of procedural fairness and natural justice reviewable on a standard of
correctness:
21 Procedural fairness
questions are pure questions of law reviewable on a correctness standard. The
second issue is thus reviewable on this standard. The third issue raised
concerning the adequacy of reasons is also a question of procedural fairness
and natural justice and is also reviewable on a standard of correctness (Andryanov
v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 272, 2007 FC 186 at para. 15; Jang v. Canada (Minister of
Citizenship and Immigration) (2004), 250 F.T.R. 303, 2004 FC 486 at para. 9; Adu v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 693, 2005 FC 565 at para. 9).
[8]
Justice
Blanchard of this Court in Canada (Minister of
Citizenship and Immigration) v. Li, 2008 FC 275 at paragraph 6 has stated
that reasons must be sufficient to enable the appeal court to discharge its
appellate function, a reviewable error is committed by a failure of a
citizenship judge to provide sufficient reasons for a decision:
6 The Act imposes a
statutory obligation on citizenship judges to provide reasons for their
decisions. The reasons must be sufficient to enable the appeal court to
discharge its appellate function. The jurisprudence has established that a
citizenship judge commits a reviewable error by failing to provide sufficient
reasons for a decision. See: Seiffert v. Canada (M.C.I.), [2005] F.C. J. No. 1326, at para. 9 and Ahmed v. Canada (M.C.I.), [2002] F.C.J. No. 1415, at para. 12.
[9]
Thus
I find that should there be a failure to provide sufficient reasons such that the
Minister cannot determine whether to appeal nor upon which this Court can
exercise its appellate function, there has been a failure of natural justice.
The matter is reviewable on a standard of correctness.
THE FACTS OF THIS CASE
[10]
The
file as was before the citizenship judge demonstrates that the Respondent and
his family, comprising his wife and two children, one of whom had not yet
reached the age of majority and thus could not independently apply for
citizenship, came to Canada from Egypt and subsequently made application for
citizenship. The wife and child who had reached the age of majority
subsequently withdrew their application. The Respondent withdrew a first
application and submitted a second application. The second application is the
subject of this appeal.
[11]
The
record raises a number of questions, for instance the Respondent was denied
health benefits from the Province of Ontario for failure
to provide adequate information as to residency. A question arises as to how
this relats to residency in Canada as a whole. The Respondent made several
trips, some of several months duration, to the United Arab Emirates. A question
arises as to whether he truly does have roots in Canada. The
Respondent has no employment in Canada other than self-employment,
whereas he has a contract for work to be done in the United Arab Emirates. Again a
question arises as to whether he truly has roots in Canada. The
Respondent filed a document showing that he had spent less than the required
number of days in Canada. Subsequently he filed a correcting document
stating that he did spend the required number of days in Canada. These are
matters that a citizenship judge is expected to consider and resolve, but not
only to do that, but state in the reasons provided that these matters were
considered and how a resolution was made.
[12]
The
record of the file respecting the citizenship application was provided to the
Court which record indicated one page of handwritten notes made by the
citizenship judge. These notes indicate that at least some of the factual
matters were at one time or another in the mind of the citizenship judge.
These notes however do not form part of the reasons.
[13]
On
this appeal the Respondent has filed an affidavit addressing, in large part,
several of the factual issues raised in his application. It is not appropriate
on an appeal such as this for this Court to receive evidence not before the
citizenship judge. I repeat what justice Russell of this Court said in Zhao
v. Canada (MCI), 2006 FC 1536 at paragraph 35:
35 Under Rule 300(c), an appeal from a
decision of a Citizenship Judge under subsection 14(5) proceeds as an
application. The old system operated as a trial de novo and an applicant was entitled to present fresh evidence.
However, several decisions have concluded that an appeal such as the one before
me in this application should proceed solely on the basis of the record before
the Citizenship Judge. See, for instance, the decisions of Justice Rothstein in
Canada
(Minister of Citizenship & Immigration) v.
Chan (1998), 150 F.T.R. 68, 44 Imm. L.R. (2d) 23 at para.3 (F.C.T.D.) and Justice
Rouleau in Tsang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1210 at para.2 (F.C.T.D.)(QL). See also Canada (Minister of Citizenship and
Immigration) v. Hung (1998), 47 Imm. L.R. (2d) 182, [1998] F.C.J. No. 1927 at para.8 (F.C.T.D.)(QL) where
Justice Rouleau held explicitly that no new evidence is to be submitted before
this Court. Finally, Justice de Montigny has referenced all of these cases in the
recent decision of Lama
v. Canada (Minister of Citizenship and Immigration), , [2005] F.C.J. No. 577, 2005 FC 461 at paragraph 21 and has concluded that the
only evidence that may be considered on appeal is the evidence that was before
the Citizenship Judge.
[14]
In
considering an application for Canadian citizenship and the issue of
“residency” there are three different ways the matter can be considered, one is
a strict counting of number of days in Canada. The second
is less stringent and requires a showing of a strong attachment to Canada. The third
is similar to the second and gives consideration to where one customarily lives
or has a centralized mode of existence. These three tests, however, cannot be
blended. Only one of the three must be selected, then applied. I repeat what
Justice Tremblay-Lamer of this Court said in Mizani v. Canada (MCI),
2007 FC 698 at paragraphs 10 and 13:
10 This Court's interpretation of
"residence" can be grouped into three categories. The first views it
as actual, physical presence in Canada for a total of three years, calculated on the basis of a
strict counting of days (Pourghasemi (Re), [1993] F.C.J. No. 232 (QL) (T.D.)). A less stringent
reading of the residence requirement recognizes that a person can be resident
in Canada, even while temporarily absent, so long as he or she maintains a
strong attachment to Canada (Antonios E. Papadogiorgakis
(Re), [1978] 2 F.C. 208 (T.D.). A third interpretation, similar
to the second, defines residence as the place where one "regularly,
normally or customarily lives" or has "centralized his or her mode of
existence" (Koo (Re), [1993] 1 F.C. 286 (T.D.) at para. 10).
…
13
While a Citizenship Judge may choose to rely on any
one of the three tests, it is not open to him or her to "blend" the
tests (Tulupnikov,
above, at para. 16).
[15]
Counsel
for the Applicant concedes that if one were to consider only the corrected
number of days present in Canada as submitted by the Respondent and to apply
only the first of these tests, the simple counting of days in Canada, then it
would be reasonable to accept that a citizenship judge may have concluded that
it would be appropriate to approve the citizenship application. However, from
the reasons given, as best they may be deciphered, this is not what the
citizenship judge did. It is difficult to make out the handwritten reasons
but, as best can be deciphered, they say:
“…OK – FP Nov/07 – Stamps
match…RQ – Engineer couldn’t get recognized of work in Cda – has contract
to…from Canada to Egypt UAE, - Res permit in
Egypt…getting visa each time he left Canada. No MOH card due to address change
& appears to be a problem with MOH. Provided correspondence with MOH.
Rented @ Minto…Jan/04., Incorp his business 28/01/05 T1 for 0203, …2004, 05 GST
2006. School docs. I am satisfied that applicant has established his roots in
Canada.”24
[16]
It
appears from the transcription that the citizenship judge applied the “strong
attachment” or “roots” test and not the strict counting of days but that is by
no means clear.
[17]
Respondent’s
Counsel argues that the reasons must be taken from the whole of the one page
form that the citizenship judge completed in which form the judge has put a
checkmark beside the printed statement in the form indicating that the
Respondent (Applicant) “has…complied with paragraph 1(c) (residence)”. Thus,
it is argued, the residency test has been applied and the applicant meets the
test. Respondent’s Counsel further argues that a space about 4 centimetres
high is all that the form provides for Reasons, thus the Reasons are expected to
be cryptic. This is best illustrated by the completed form in question which I
attach to this decision.
[18]
Applicant’s
Counsel argues that, in a case such as the present, it would be expected that
the citizenship judge would attach to the form a page or pages in which
sufficient reasons were set out. The citizenship judge should not be
constrained by the form.
[19]
I
find that the requirement that a citizenship judge provide clear and adequate
reasons must prevail over any apparent constraint imposed by the form. It is
unfortunate that a better form was not provided such as one indicating that a
page or pages may be attached in which appropriate reasons shall be given.
Citizenship and Immigration Canada should give immediate attention to improving
the form.
[20]
Here
I find that the reasons provided are both inadequate and confusing. They are
inadequate in that a number of factual matters are presented by this
application yet there is nothing set out in the reasons as to whether and how
these matters were considered and resolved. The reasons are also confusing in
that the legal basis for the decision, whether the “roots” test or strict
counting of days test, was applied. These defects are such that neither the
Minister nor this Court can determine what was considered and applied by the
citizenship judge. There has been a failure to comply with the statutory
requirement to give reasons.
REMEDY
[21]
This
proceeding is characterized by the Citizenship Act section 14(5) as an
appeal. Rule 300 of the Federal Courts Rules provides that the
procedure to be followed is by way of an application.
[22]
The
Citizenship Act does not state what remedies this Court can provide on
such an appeal. Section 52 of the Federal Courts Act, R.S.C. 1985, c.
F-7, by way of contrast provides for a number of remedies respecting an appeal
from the Federal Court including dismissing the appeal, giving the award that
should have been given, ordering a new trial and making a declaration as to
certain conclusions and ordering the continuation of a trial. Further, if
this were a judicial review, this Court could dismiss the application or quash
the decision under review and return it for redetermination usually by a
different person.
[23]
In
reviewing a number of decisions of my colleagues I note that, in granting
remedies other than a dismissal of the appeal, they have, in allowing an appeal
by the Minister dismissed an application for citizenship. In other cases they
have allowed an appeal and sent the matter back for redetermination, sometimes
by a different citizenship judge.
[24]
In
the present case, I will allow the appeal. I believe that it is most
appropriate to have the matter sent back for redetermination and most
appropriate to have the matter redetermined by a different citizenship judge.
[25]
It
is appropriate that no costs be awarded. The Minister, although successful,
must bear some consequences for the inadequacy of the form.
JUDGMENT
For the Reasons
provided:
THIS COURT ORDERS that:
- The appeal is
allowed;
- The matter is
returned for redetermination by a different citizenship judge;
- There is no order
as to costs.
"Roger
T. Hughes"
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