Date: 20130530
Docket: T-1924-12
Citation:
2013 FC 578
Ottawa, Ontario,
May 30, 2013
PRESENT: The
Honourable Madam Justice Gagné
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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MANISHA DAS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an appeal pursuant to subsection 14(5) of the Citizenship Act, RSC 1985, c C-29 [Act] and section 21 of the Federal
Courts Act, RSC 1985, c F-7, brought on behalf of the
Minister of Citizenship and Immigration [applicant], from the decision of the
Citizenship Judge Crist Grenikolos [Citizenship Judge], dated August 21, 2012,
whereby he approved the application for Canadian citizenship of Ms. Manisha Das
[respondent] made pursuant to subsection 5(1) of the Act.
Background
[2]
The
respondent is a fifty-nine year old citizen of India who became a permanent
resident of Canada on August 7, 1974, after having been sponsored by her
husband. On August 10, 2010, she submitted an application for Canadian
citizenship, alleging that since her arrival in Canada, she had been residing at
the same address in Scarborough, Ontario, with her husband and two daughters.
The respondent alleged that her older daughter and her husband were employed in
Ontario, that her younger daughter was a student at the University of Toronto at
the time she filed her application for citizenship, and that she had been
working part-time as a sales associate at Zellers since October 2007.
[3]
In order to
meet the residency requirement set out in paragraph 5(1)(c) of
the Act, the respondent had to provide evidence that she resided in Canada for
at least 1095 days during the reference period of August 10, 2006 to August 10,
2010. She declared four absences from Canada during the reference period, totaling
57 days of absence (three trips to Michigan and one trip to Calcutta). She
therefore had 1403 days of physical presence in Canada which fairly exceeded
the required 1095 days.
[4]
As the respondent was more than fifty-five years old, she
was not required to write the citizenship test. She was, however, interviewed
by a Citizenship Officer, and was asked to complete a residence questionnaire
and provide a number of additional documents to establish her residency. The Citizenship
Officer also questioned the respondent about a stamp in her passport, showing a
return to Canada via Toronto Pearson International Airport on April 13, 2010,
which did not correspond to her declared absences. The respondent stated that
she had gone to Michigan for a few days.
[5]
Upon
review of the information in the File Preparation and Analysis Template, it
seems that the Citizenship Officer identified credibility as the main issue
with the respondent’s application, as the Citizenship Officer referred to the
lack of evidence regarding the respondent’s residence in Canada during the
reference period and the documents filed being only “passive indicators” of
residence as they did not demonstrate the respondent’s physical presence in
Canada.
[6]
As per the Citizenship Officer’s letter dated June 9, 2011
(Certified Tribunal Record [CTR], p. 76), the documents specifically required from
the respondent, in addition to the Residence Questionnaire, were the following:
a. All
pages, including blank pages, of all passports and/or travel documents (valid, expired
and cancelled passports) covering the period from 2006 to 2010;
b. Valid
provincial identification (Ontario Health Card, etc.);
c. Notices
of Assessment and Income Tax Returns, T4 slips, T5 slips, and employment
letters, etc. from 2006 to 2010;
d. Proof
of employment from 2006 to 2010;
e. Proof
of school attendance for dependent children – transcripts, record cards, etc –
from 2006 to 2010;
f. Letter
from financial institution that indicates the date account(s) were open and the
maintenance of the account(s), including evidence of investments;
g. Copy
of the respondent’s Personal Health Claims Payment Summary from the Ministry of
Health and Long Term Care; and
h. Proof
of past and current immigration status in the United States and travel record
during the reference period.
[7]
The
respondent asserts that the only document she was unable to provide to the
Citizenship Judge was the passport that she had prior to March 30, 2009, as her
husband had shredded her expired passport, believing that it would not be
needed in the future. However, the respondent did not provide the documents
listed at items 5 and 7, without providing specific justifications for not
doing so, and although she has made a request to the U.S. authorities, she was
unable to obtain the document mentioned at item 8. She also stated in her
residence questionnaire that she had inadvertently forgotten to mention that
she had travelled to Cuba for seven days in April 2010.
[8]
The
respondent provided her Tax Returns for 2006, 2008, 2009, 2010 and 2011, but
filed no pay stubs, direct deposits or T4 slips for employment income. She
added a brief letter from her employer stating that she was “a part time employee
and has been a valuable member of our Team since October 2007.” (CTR, p. 73). Furthermore, the respondent filed a copy of a 2006
annual mortgage statement showing that she owns a house in Canada with her spouse. Also, a summary of the respondent’s accounts at her financial
institution was provided. However, it contained no transaction records or other
information regarding the use of the accounts (CTR, p. 30).
Decision under appeal
[9]
On
August 21, 2012, the respondent, accompanied by her
daughter, was interviewed by the Citizenship Judge. The latter approved her application
in the following terms:
Applicant has provided sufficient information and
careful examination of both written and oral evidence satisfies me that she
meets on the balance of probabilities residency. Passport covering part of R.P.
was destroyed (shredded) by her spouse according to her statement as he did not
realize it would be needed. Applicant works at Zellers (part-time), owns her
house, and is very credible. All of her immediate family are c.c. with her
children born in Canada.
Issues
and Standard of Review
[10]
The applicant raises three overlapping grounds of review
against the impugned decision, arguing that the Citizenship Judge erred (i) by failing to clearly state which test for
residency he applied, (ii) by concluding that the respondent had satisfied the
residency requirement under paragraph 5(1)(c) of the Act, and (iii) by failing
to provide the Minister with sufficient and adequate reasons pursuant to the
requirement of subsection 14(2) of the Act.
[11]
Both
parties are in agreement that the question of whether or not an applicant for
citizenship has met the residency requirement of paragraph
5(1)(c) of the Act is to be reviewed on the standard of reasonableness (Canada (Minister of Citizenship
and Immigration) v Abdallah,
2012 FC 985, at para 8 (Abdallah); Canada (Minister of Citizenship and
Immigration) v Jeizan, 2010 FC 323 at para 12). The same standard applies
to the question of adequacy of reasons, which forms part of the reasonableness
analysis (Baig v Canada (Minister of Citizenship and Immigration), 2012
FC 858 at para 10;
Canada (Minister
of Citizenship and Immigration) v Raphaël, 2012 FC 1039 at paras 15-16 (Raphaël)).
[12]
It
is well-known that 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” or otherwise
fails to satisfy
the
requirements of reasonableness, namely “the existence of justification,
transparency and intelligibility within the decision-making process” (Dunsmuir
v New Brunswick, 2008 SCC 9, at para 47).
Analysis
[13]
Having
carefully reviewed the evidence in the record, the parties’ arguments and the
applicable jurisprudence, I find that the failure by the Citizenship Judge to
have clearly stated which residency test he has applied and how that test was
met by the respondent, renders his decision unreasonable and that the file
should be sent back for redetermination (Raphaël, above, at paras
19 and 22-25; Abdallah ,
above, at para 19;
Canada (Minister
of Citizenship and Immigration) v Al-Showaiter, 2012 FC 12 at para 30; and Canada (Minister of Citizenship and Immigration) v Abou-Zahra, 2010 FC 1073 at para 21).
[14]
Furthermore,
while the Citizenship
Judge vaguely discussed the fact that
the respondent’s home, family and work are in Canada, which may suggest that a
more qualitative test was applied, there is no reference or clear analysis in
the Citizenship
Judge’s reasons in light of the factors set out
in Koo (Re), [1993] 1 FC 286, at para 10:
Questions that can be asked which assist in such a
determination are:
(1) was the
individual physically present in Canada for a long period prior to recent
absences which occurred immediately before the application for citizenship?
(2) where are the
applicant's immediate family and dependents (and extended family) resident?
(3) does the
pattern of physical presence in Canada indicate a returning home or merely
visiting the country?
(4) what is the
extent of the physical absences -- if an applicant is only a few days short of
the 1,095-day total it is easier to find deemed residence than if those
absences are extensive?
(5) is the
physical absence caused by a clearly temporary situation such as employment as
a missionary abroad, following a course of study abroad as a student, accepting
temporary employment abroad, accompanying a spouse who has accepted employment
abroad?
(6) what is the
quality of the connection with Canada: is it more substantial than that which
exists with any other country?
[15]
The
respondent has addressed the above questions in her written submissions,
assuming that the “centralized
mode of existence” test has been applied in this case (Islam v Canada (Minister of Citizenship and Immigration),
2009 FC 10 at para 5
and Seiffert v Canada (Minister of Citizenship and Immigration),
2005 FC 1072 at para 9).
I agree that if the Court could read into the Citizenship Judge’s brief paragraph of reasons in order to address the
above-stated issues,
the record might contain enough evidence to suggest that one of the more flexible tests set out in Koo (Re), above, or Papadogiorgakis
(Re), [1978] FCJ No 31 was applied in lieu of a physical
presence test of Pourghasemi
(Re), [1993] FCJ
No 232. However, the fact remains that the Citizenship Judge committed a
reviewable error by failing to properly state the test that he chose to apply
and by failing to carry out the proper analysis.
[16]
This conclusion
stands even if I disagree with the applicant that the evidence filed by the respondent
is merely “passive evidence” which does not prove that she was physically
present in Canada during the reference period. It is noteworthy that the
Citizenship Judge found the respondent entirely
credible and
it
was therefore open to him to consider that the respondent could
establish residency without providing the expired Indian passport which she
allegedly shredded after she received her new passport. For instance, the letter from
the employer, although brief and silent on the number of hours the respondent
has worked per week, strongly indicates that the respondent was physically
present in Canada for significant periods since October of 2007.
[17]
The applicant
faults the respondent for not having filed more “active evidence” such as bank
statements containing information about the maintenance and day-to-day use of
the accounts. Those
documents were neither required under the June 9, 2011 letter, nor discussed
during the interview with the Citizenship Judge. Save for the exceptions
indicated above, the respondent provided the requested documents and answered
the questions put to her by the Citizenship Judge.
[18]
Be that as it
may, since the applicant expected the respondent to file documents that were
not specifically listed in the June 9, 2011 letter from the Citizenship
Officer, nor required by the Citizenship Judge during the interview he
conducted, as well as documents that the respondent made all necessary efforts to
obtain and provide, it would only be fair to allow the respondent additional
time to file any supplementary documents in her possession, as proof of her
residency, with the Citizenship Judge.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1)
the
application for judicial review is granted and the decision of the Citizenship
Judge is set aside;
2)
the
matter is sent back to a different Citizenship Judge for redetermination;
3)
the
respondent has until June 27, 2013 to file any additional documents in her
possession, as proof of her residency in Canada, with the Citizenship Judge;
4)
considering
the mixed outcome, no costs are granted.
“Jocelyne Gagné”
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