Date: 20081118
Docket: T-545-08
Citation: 2008 FC 1289
Toronto, Ontario, November 18, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
IBRAHIM
ISMAIL MUHANNA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Muhanna is appealing the decision of Citizenship Judge Normand Allaire, dated
March 18, 2008, refusing his application for Canadian citizenship. In fact,
this is the third application for citizenship that Mr. Muhanna has had refused.
The two previous applications were refused in 2002 and 2005, respectively. For
the reasons that follow, I am of the view that this appeal must be allowed and
the decision of the Citizenship Judge referred back for a redetermination by a
different Judge.
Background
[2]
Mr.
Muhanna is a Jordanian national. He has had status in Canada as a
permanent resident since 1995. Three of his six children are Canadian
citizens, and another child and his wife have filed citizenship applications
which are in process.
[3]
In
his 2006 application, the most recent and the one at issue, Mr. Muhanna
affirmed that he had been outside of Canada for a total of 121 days in the
preceding four years (that is, from March 14, 2002 to March 14, 2006), and
submitted that his trips abroad were mainly related to his business activities
and his dealing with the United Nations Compensation Committee for Gulf War Victims.
He filed hundreds of pages of supporting material, including utility bills,
medical documents, Canadian identification cards, income tax documentation for
the years 2002 to 2005, copies of bank and credit card statements, and a
Jordanian passport issued in Canada in 2002, that was renewed in Dubai in 2004,
allegedly by one of his sons. Along with this passport, he included a list of
entry and exit stamps contained therein, as well as a summary of all of his
travels to and from Canada within the relevant timeframe.
[4]
In
his affidavit filed in support of his appeal, he states that he arrived late at
the hearing on account of a traffic accident. He says that he was accused by
the presiding Citizenship Judge of “not being serious about [his]
application". He protested and was told not to shout. He replied that he
was not shouting but merely speaking loudly on account of a hearing problem.
This incident is also briefly mentioned in the Judge's written decision. Nothing
turns on it. In his affidavit Mr. Muhanna states that the Citizenship Judge
asked to see his passport, that he took it and reviewed it, and advised Mr.
Muhanna that he had not accumulated sufficient time in Canada. Mr.
Muhanna claims that he asked precisely what dates in the application were problematic,
but that the Judge would not answer and replied only that “he would receive it
in writing".
[5]
The
relevant portion of the Citizenship Judge’s decision, under the heading “Analysis"
reads as follows:
Before approving an
application for a grant of citizenship made under subsection 5(1) of the Act, I
must determine whether you meet the requirements of this Act and the
regulations, including the requirements set out in paragraph 5(1)(c) to have
accumulated at least three years (1,095 days) of residence within the
four years (1,460 days) immediately preceding the date of your application.
“At least three years" does not mean less time; it means not fewer than
three years.
There is Federal Court
jurisprudence, which does not require physical presence of the applicant for
citizenship for the entire 1,095 days, when there are special or exceptional
circumstances. However, in my view, too long an absence from Canada, albeit temporary, during the
minimum period of time set out in the Act, as in the present case, in (sic)
contrary to the purpose of the residency requirements of the Act. Indeed, the
Act already allows a person who has been lawfully admitted to Canada for
permanent residence not to reside in Canada
during one of the four years preceding the date of that person's application
for citizenship.
During your relevant period of
1,460 days, I found 438 days of absences. This was (438-121) 317 days more
than declared on your application. As a result, I found that your physical
presence in Canada was reduced to 1,022 days.
It (sic) did not find that your application was credible. I found that
you did not meet the requirement of 1,095 days under the Act. You are 73 days
short [of] the minimum required 1,095 days as per the Act.
Issues
[6]
Mr.
Muhanna raises three issues in this application:
(a) Whether the
Citizenship Judge erred in denying his application on the basis that he did not
satisfy the residency requirements of section 5(1)(c) of the Act in that he
failed to apply any of the residency tests that have been considered by this
Court or, if he did apply one of those tests, in failing to indicate which of
those tests he applied;
(b) Whether the
Citizenship Judge breached procedural fairness by failing to provide reasons
for his negative credibility finding with respect to Mr. Muhanna’s residency
calculation; and
(c) Whether the
Citizenship Judge breached procedural fairness by failing to indicate to Mr.
Muhanna during the hearing, the areas of concern that would affect his decision,
thereby denying him the opportunity to answer the Citizenship Judge's concerns.
Analysis
[7]
Mr.
Muhanna relies on the recent decision of Justice Phelan in Wong v. Canada
(Minister of Citizenship and Immigration), 2008 FC 731, wherein he held
that although this Court has embraced, at various times, three different
residency tests for the purposes of section 5 of the Act (i.e. strict physical
presence in Re Pourghasemi [1993] 62 F.T.R. 122; quality of attachment in
Re Papadogiorgakis, [1978] 2 F.C. 208; and centralized mode of living in
Re Koo, [1993] 1 F.C. 286), the strict physical presence test has
essentially been displaced, and the “blending” of the other two is an error of
law. Mr. Muhanna submits that the Judge blended the latter two in the
decision under appeal.
[8]
The
respondent submits that the Judge used and relied on the strict physical
presence test and that he was entitled to do so, notwithstanding Wong.
[9]
In
my view, it is not at all certain which test the Judge employed. While the
respondent submits that the Judge based his determination on the strict
physical presence test, any certainty in this respect is clouded by the Judge’s
statement that “too long an absence from Canada, albeit temporary, during
the minimum period of time set out in the Act, as in the present
case, is contrary to the purpose of the residency requirements of the Act” [my
emphasis]. The minimum period set out in the Act is the 1,095 day period. This
statement of the Citizenship Judge implies that a brief absence, or one that is
not “too long”, in that 1,095 day period, may be acceptable. If so, then the strict
physical presence test has not been used. But beyond that observation, it is
impossible to ascertain with any certainty what test he was using. For this
reason alone the appeal must be allowed.
[10]
This
is not the only flaw in the decision. It is clear that the Judge rejected the
evidence of Mr. Muhanna that he had been absent for only 121 days, and found that
he was absent for 438 days. There is evidence in the record that, if believed,
would support the conclusion that Mr. Muhanna lied about the extent of his
absences from Canada. For
instance, there is evidence that he transmitted his passport back to Canada to have it
renewed, ostensibly in order to create the impression that he was residing in Canada, whereas in
fact he was out of the country. It is clear enough that Mr. Muhanna’s evidence
was disbelieved by the Judge; however, he provides no analysis of either Mr.
Muhanna’s evidence or the evidence in the record that suggests that he had lied
and, most importantly, he provides no basis at all for his credibility
finding. One cannot simply state that an applicant is not credible without setting
out the basis for that finding. In so doing, the Judge erred in law.
[11]
Lastly,
although the Judge states that he found that Mr. Muhanna had been absent from Canada for a total
of 438 days, it cannot be ascertained with any certainty how he arrived at that
determination. Certainly, he was relying on something other than the material
filed by Mr. Muhanna. From the materials in the certified record, the
determination appears to have been based on a calculation made by an
Immigration Officer and set out in a briefing note. That calculation of
absences ought to have been put to Mr. Muhanna in order to see if he had any
explanation for the additional absences claimed by the respondent; not to do
so, in this case, was a denial of procedural fairness. Mr. Muhanna provided an
explanation for the discrepancy in the affidavit filed in support of the
application. I did not consider that explanation as it was evidence that was
not before the Citizenship Judge. The point is that it should have been before
the Judge, because he ought to have asked the applicant for an explanation of
the additional absences claimed by the respondent. Only then he would have
been in a position to make a credibility finding. As it was, until the written
decision was made, and this appeal filed, and the certified record produced,
Mr. Muhanna appears not to have had any way of knowing that there were
additional absences claimed by the respondent.
[12]
The
respondent submitted at the hearing that Mr. Muhanna would have known that
there were additional absences claimed by the respondent, as the residency
period of the instant application overlapped by some 13 months with his
previous application for citizenship, which had been dismissed because the residency
requirement had not been met. If the previous decision determined that Mr.
Muhanna had been absent during that 13 month period of overlap and if that had
been communicated to Mr. Muhanna, then the respondent’s submission might be persuasive.
However, there was no evidence before the Citizenship Judge or this Court as to
what information was provided to Mr. Muhanna in connection with the rejection
of his earlier application. Accordingly, the Court cannot determine if he was
in a position to know that he had to address this or not. Clearly, it would be
unreasonable to expect him to respond to evidence unknown to him.
[13]
Accordingly,
I must allow this appeal. The matter is remitted to another citizenship Judge
for redetermination. It may well be that once these issues are fully explored,
that Judge will dismiss Mr. Muhanna’s application, for despite the errors noted
above, there are some very serious issues raised in the certified record that
cry out for a believable explanation from Mr. Muhanna, corroborated with
objective evidence, if he is to be successful in his application.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the appeal is
allowed and the matter is referred back to another citizenship judge for a new
determination of the citizenship application.
“Russel W. Zinn”
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