Date: 20130621
Docket:
T-1693-12
Citation:
2013 FC 699
Ottawa, Ontario,
June 21, 2013
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
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MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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MAVY MILIANA PAIS
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The
citizenship officer who vetted the applications of Mrs. Pais and her husband
referred them to a citizenship judge. She was concerned as to their statements
with respect to their residency in Canada, as well as their credibility and
that of the documents they submitted.
[2]
Notwithstanding
these concerns, in his Notice to the Minister recommending citizenship to Mrs.
Pais, the citizenship judge simply said in the “reasons” box of the form:
“Residence confirmed”.
[3]
With
respect to Mrs. Pais’ husband, Lile Peter Pais, the citizenship judge also
recommended that the Minister grant citizenship. In the “reasons” box, he noted
that he had suffered a stroke in 1995 and “spouse testifies credibly that since
his stroke, the claimant cannot be away long periods from family.” Both
applications had been treated under the same file number.
[4]
The
Minister appealed both decisions, which were treated separately by this Court.
The decision with respect to Mr. Pais was quashed, and not sent back to another
citizenship judge for reconsideration. The Minister submits that I should do
the same with respect to Mrs. Pais.
[5]
The
Minister’s appeal is multilayered:
a.
The
citizenship judge gave no reasons at all. He gave a conclusion, nothing more.
Section 14(2) of the Citizenship Act requires the citizenship judge to
provide the Minister with the reasons for his determination.
b.
Mrs.
Pais claimed that she was physically present in Canada for 1,123 days in the
four years immediately preceding her application. The Act requires that one
reside in Canada for at least three of the four years immediately prior to the
application, i.e. 1,095 days. There is proof positive that she was not
in Canada for 21 days claimed, which brings her quite close to the 1,095 days.
c.
She
lied on a number of fronts and so may well have not been physically here for
1,095 days. In such a case, a citizenship judge would have had to carry out one
of the three analyses endorsed by this Court, such as “I’m here in spirit if
not in body” (Koo (Re), [1993] 1 FC 286, 59 FTR 27, [1992] FCJ No 1107
(QL)).
d.
She
lied with respect to her husband’s application. She said he had suffered a
stroke in 1995 and could not be away from her for any lengthy period of time.
The Minister has come to learn that during all this time he was working in the United Arab Emirates, while she claimed he was in Canada. Although she has not been charged,
s. 29 of the Citizenship Act provides that it is an offence for any
of the purposes of the Act to make a false representation, to commit fraud or
to knowingly conceal material circumstances.
[6]
Counsel
for Mr. Pais responds that we should only be focusing on her application, not
her husband’s. Furthermore, there is no evidence that she lied. After the
citizenship officer expressed some concerns, she did a residence calculation
and deducted the 21 days in question.
[7]
Furthermore,
the citizenship judge’s notes form part of his reasons and they show he dealt
with the issues at play.
[8]
There
are a number of reasons why this appeal should be granted.
[9]
The
first is that there are no reasons at all. This is not a case in which the
reviewing judge can appreciate that although the reasons are not as clear as
one would like, the result is justified by the record (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708, [2011] SCJ No 62 (QL)). The record includes two pages
of scribbles, which deal with both husband and wife, even though they were
interviewed separately. One does not know if they were contemporaneous notes,
or whether they were notes prepared prior to the hearing. The decision is
certainly not transparent within the meaning of Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, paragraph 47, and is therefore unreasonable.
[10]
In
addition, there were certainly misrepresentations in Mrs. Pais’ application. It
is purported to be signed in Calgary 30 September 2009. She gave her Calgary home as her address. In point of fact, she had left for United Arab Emirates 9
September 2009 and did not return for some years. Although she may have
subsequently filled out a questionnaire through which if one counts up all the
days, might lead one to conclude that she had left Canada 9 September 2009, she
never actually said so and we do not know what was said to the citizenship
judge.
[11]
Furthermore,
there is every reason to believe she misled the citizenship judge with respect
to her husband’s stroke. Thus, if we were prepared to give her the benefit of
the doubt that her error with respect to 9 September to 30 September 2009 was
innocent, her whole course of conduct suggests otherwise. She told the
citizenship judge her husband was present in Canada, while he was in fact
working in the United Arab Emirates. In so doing, she prevented the citizenship
judge from making further inquiries. Although the case deals with
admissibility, rather than citizenship, the decision of the Supreme Court of
Canada in Canada (Minister of Manpower & Immigration) v Brooks,
[1974] S.C.R. 850, 30 DLR (3d) 522, is most instructive.
[12]
As
Mr. Justice Laskin, as he then was, said at page 873:
Lest there be any doubt on the matter as a result of
the Board’s reasons, I would repudiate any contention or conclusion that
materiality under s. 19(1)(e)(viii) requires that the untruth or the misleading
information in an answer or answers be such as to have concealed an independent
ground of deportation. The untruth or misleading information may fall short of
this and yet have been an inducing factor in admission. Evidence, as was given
in the present case, that certain incorrect answers would have had no influence
in the admission of a person is, of course, relevant to materiality. But also
relevant is whether the untruths or the misleading answers had the effect of foreclosing
or averting further inquiries, even if those inquiries might not have turned up
any independent ground of deportation.
[13]
Counsel
for Mrs. Pais objects to the affidavit of a Canadian Embassy official in the United Arab Emirates who made inquiries and was informed by the Higher College of Technology in Abu Dhabi that Mr. Pais has been working there continuously since the 1990s. His objection
was based on the fact that this evidence was not before the citizenship judge.
[14]
There
are exceptions to the rule that a judicial review or appeal is based on the
material which was before the initial tribunal. One exception is if the
decision was obtained by fraud. Although it may not apply as of its own force,
rule 399 of the Federal Courts Rules is illustrative of the principle.
It provides that an order may be set aside or varied when it was obtained by
fraud.
[15]
The
record is simply too sketchy to determine whether Mrs. Pais’s application, as
opposed to her husband’s, was tainted with fraud, although a prima facie
case has certainly been made out. For that reason, although I shall grant the
Minister’s appeal, I am not prepared to simply quash the decision. I will refer
the matter back to another citizenship judge for reconsideration. It may be
that Mrs. Pais has failed to maintain her permanent resident status. If, as a
result thereof, she becomes subject to a removal order she may be denied
citizenship in any event (Richi v Canada (Minister of Citizenship and
Immigration), 2013 FC 212, [2013] FCJ No 217 (QL); Hadaydoun v Canada (Minister of Citizenship and Immigration), 2012 FC 995, [2012] FCJ No 1091 (QL)).
Citizenship is not a piece of paper to be pulled out of the drawer halfway
around the world should the need arise.
JUDGMENT
FOR
REASONS GIVEN;
THIS
COURT ORDERS that
1.
The
appeal is allowed.
2.
The
matter is referred back to another citizenship judge for reconsideration de
novo.
“Sean Harrington”
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