Date:
20130124
Docket:
T-167-12
Citation:
2013 FC 70
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec,
January 24, 2013
PRESENT: The
Honourable Mr. Justice Shore
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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WALID SALAMEH
RITA BOU-SADER
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Respondents
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REASONS
FOR JUDGMENT AND JUDGMENT
I. Preliminary
[1]
A
citizenship officer prepared a document describing the contradictions,
irregularities and omissions in the citizenship applicants’ record,
demonstrating the following:
a. The
absence of stamps indicating a return to Canada for the applicants;
b. One
full year was missing with respect to the tax assessment period. That was part
of the applicants’ period of “physical presence”;
c. The outline
of the banking transactions for the reference period shows very few
transactions, other than bank transfers, except for the period from September
to November 2008, in Montréal; that period shows bank account statements
with Mississauga addresses (account statements from the HSBC Bank, which,
incidentally, were part of a list of common addresses for 45 other people);
d. The
Mississauga address did not even appear in the applicants’ citizenship
application; but, instead, in a questionnaire for the period between 2007 and
2008.
II. Overview
[2]
A
citizenship judge can choose between three methods for determining the
citizenship issue; the citizenship judge can choose one of the three to
determine whether or not the person has one of the three criteria for the
purposes of citizenship; but, the judge cannot “blend” the three together (Mizani
v Canada (Minister of Citizenship and Immigration), 2007 FC 698). That
would not be logical.
III. Introduction
[3]
The
applicant appealed the citizenship judge’s decision pursuant to subsection
14(5) of the Citizenship Act, RSC (1985), c C-29 and section 21 of the Federal
Courts Act, RSC (1985), c F-7 and according to the Federal Courts Rules,
SOR/98-106.
IV. Judicial procedure
[4]
The
notice of application was not served on the respondents because they could not
be reached at the address that was submitted as current; also, they did not leave
where they could be reached at the previous address according to the bailiffs’
report on the service attempts dated, respectively, January 18 and January
25, 2012.
[5]
Further
to an order issued by Prothonotary Richard Morneau to serve the notice of
application at the Federal Court in Montréal, the respondents were not in
attendance.
V. Facts
[6]
The
applicants arrived in Canada on June 22, 2005, and the reference period is
between June 22, 2006, and March 30, 2009 (with permanent resident visas).
In their citizenship applications dated March 30, 2009, the applicants stated that
the principal applicant, Walid Salameh, was absent from Canada for a period of
255 days, that Rita Bou-Sader was absent from Canada for 263 days, that Mr.
Salameh was physically present in Canada for 1123 days and that Ms. Bou-Sader was
physically present in Canada for 1115 days.
[7]
As
the Canadian authorities were not able as such to ascertain the presence of the
applicants as having been registered, their case was referred to a citizenship
judge to establish whether or not they were eligible for citizenship pursuant
to paragraph 5(1)(c) of the Citizenship Act.
VI. Analysis
[8]
In
analyzing the citizenship judge’s decision, the Court, after analyzing two paragraphs,
was unable to understand, even with the support of the evidence in the record,
how the citizenship judge determined each of the two cases.
[9]
The
period of physical presence for the two applicants was not calculated logically
in the record; the reasons referred to a trip to Lebanon in 2011, which is completely
outside the reference period.
[10]
Therefore,
the citizenship judge’s decision is not adequately reasoned to enable one to understand
from where the citizenship judge took his numbers or even how he calculated those
numbers (Canada (Minister of Citizenship and Immigration) v Al-Showaiter,
2012 FC 12 at paragraph 12 and 14). Because this decision with respect to the
applicants is incomprehensible, an error of law was committed by an erroneous
comprehension of paragraph 5(1)(c) of the Citizenship Act.
[11]
The
case law has established three methods by which “residence” can be
determined; that is: (i) “actual, physical presence in Canada for a total of
three years, calculated on the basis of a strict counting of days”; (ii) “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 FC 208 (TD); or (iii) the place where one “regularly,
normally or customarily lives” or has “centralized his or her mode of
existence” (Koo (Re), [1993] 1 FC 286 (TD) at paragraph 10).
[12]
A
citizenship judge can choose between three methods for determining the
citizenship issue; the citizenship judge can choose one of the three to
determine whether or not the person has one of the three criteria for the
purposes of citizenship; but, the judge cannot “blend” the three together (Mizani,
above). That would not be logical.
[13]
A
citizenship officer prepared a document describing the contradictions,
irregularities and omissions in the citizenship applicants’ record,
demonstrating the following:
a. The
absence of stamps indicating a return to Canada for the applicants;
b. One
full year was missing with respect to the tax assessment period. That was part
of the applicants’ period of “physical presence”;
c. The
outline of the banking transactions for the reference period shows very few
transactions, other than bank transfers, except for the period from September
to November 2008, in Montréal; that period shows bank account statements
with Mississauga addresses (account statements from the HSBC Bank, which,
incidentally, were part of a list of common addresses for 45 other people);
d. The
Mississauga address did not even appear in the applicants’ citizenship
application; but, instead, in a questionnaire for the period between 2007 and
2008;
e. There
was also confusion with respect to whether Ms. Bou-Sader was a homemaker or
worked. The evidence remains contradictory;
f. According
to an interview, the child, Paloma, was a student in Lebanon for the 2009-2010
school year; and, according to a residence questionnaire, she was registered in
a school in Montréal.
[14]
Therefore,
because of omissions, contradictions and implausibilities, the citizenship
judge’s analysis is neither reasonable nor correct.
VII. Conclusion
[15]
For
all of the above-mentioned reasons, this Court finds that the appeal is allowed.
JUDGMENT
THE
COURT ORDERS that the appeal be allowed and the matter be
referred back to a different citizenship judge for redetermination.
“Michel M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
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