Docket: T-282-14
Citation:
2014 FC 947
Ottawa, Ontario, October 6, 2014
PRESENT: The
Honourable Madam Justice Kane
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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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HABIBRAHMAN SAFI
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Respondent
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JUDGMENT AND REASONS
[1]
This is an appeal under subsection 14(5) of the Citizenship
Act, RSC 1985, C-29 [the Act] and section 21 of the Federal Courts Act,
RSC 1985, c F-7 of the decision of a Citizenship Judge dated November 22, 2013
that approved the Respondent’s Citizenship Application under subsection 5(1) of
the Act.
[2]
For the reasons that follow, the application for
judicial review is allowed and the respondent’s Citizenship Application should
be re-considered by a different Citizenship Judge.
[3]
As a preliminary issue, the affidavit of
Stephanie Miller submitted by the applicant was filed with the Court and
provided to the respondent beyond the time limits prescribed by the Federal
Courts Rules. The applicant agrees to withdraw the affidavit and as a result,
the affidavit and the documents attached to it have not been considered.
Background
[4]
Mr Safi arrived in Canada on September 13, 2006
and became a permanent resident on that same date. He applied for citizenship
on April 9, 2010. His Application for Citizenship states, among other things,
that he is a citizen of Afghanistan, that he has resided at an address in North York since September 2009, and that he has been unemployed for that period. The
Application includes the form used to calculate the number of days of residence
in Canada pursuant to the Act. Mr Safi lists three absences from Canada; two visits to the Ukraine for 24 and 30 days and one visit to Afghanistan for 54 days for a
total of 108 days of absence. The calculation then indicates that there were
1305 days between his date of arrival in Canada and his Application and then
deducts 108 days of absence, leaving 1197 days of residence in Canada in the relevant period. Mr Safi signed the Citizenship Application attesting that
all the information was true, correct and complete.
[5]
Mr Safi also submitted a Residence
Questionnaire, dated April 18, 2011. In response to Question 4, which asks “Do you work, study or live in any country other than Canada?” Mr Safi marked the Yes box and indicated “Ukraine”. He also indicated that
he had resided at the same address in North York since September 2006, his wife
in Canada was his only family member, and in response to Question 9 regarding
work and education history, that he was a student at Hardington LINC [Language
Instruction Newcomers to Canada] from October 2006 to October 2009 and at
Yorkdale Adult Learning Centre from November 2009 to September 2011.
[6]
In response to Question 11, Mr Safi lists six
absences from Canada; four visits to the Ukraine of 27, 17, 30 and 18 days, one
visit to China of 16 days and one visit to Afghanistan of 52 days. These
absences total 160 days outside of Canada.
[7]
In response to Question 12 which asks “When you were outside Canada, where did you stay?”, Mr
Safi provides an address in Odessa, Ukraine which he rented from August 1998 to
September 2006.
[8]
Mr Safi signed the Residence Questionnaire
attesting that the information in the form and in the supporting documents was
true, correct and complete.
[9]
A Citizenship Officer prepared a short
assessment and requested that a hearing before a Citizenship Judge be held to
determine the Application. At the hearing held on October 16, 2013, Mr Safi
consented to disclosure of his history of recorded entries into Canada from the Canadian Border Service Agency [CBSA]. This information, referred to as an
Integrated Customs and Enforcement System [ICES] report, was provided to the
Citizenship Judge.
[10]
The ICES document provided by CBSA shows Mr
Safi’s arrivals in Canada on the following dates: September 13, 2006 (his
landing in Canada), November 27, 2006, March 30, 2007, July 3, 2007, November
23, 2007, September 14, 2008 and September 8, 2009.
[11]
The Citizenship Application, Residency
Questionnaire and other documents, including Mr Safi’s timetable for three
classes at Yorkdale Adult Learning Centre, a letter confirming that he had
registered for the Hardington LINC program, a letter from his landlord
indicating he had resided at the North York address since September 2006, a
Canada Revenue Agency notice of assessment for 2010 and his Afghan passport
were provided to the Citizenship Judge.
The Decision under Appeal
[12]
The Citizenship Judge approved Mr Safi’s
Application for Citizenship on November 22, 2013. The Decision is set out in
the required form, “Notice to the Minister of the Decision of the Citizenship
Judge”. The “reasons” section of that form indicates the following in
handwriting:
interviewed applicant & examined docs.
- officer error in
calculating the relative material period It is correct
- requested ICES to confirm app & RQ -. looks okay - will make
decision once ICES reviewed.
ICES reviewed - matches as stated
- no income but travels?
The Issues
[13]
The applicant challenges both the reasonableness
of the decision to approve Mr Safi’s Application for Citizenship, given the
concerns raised in the documents on the record, and the adequacy of the reasons
provided by the Citizenship Judge. The applicant acknowledges, however, that
the adequacy of reasons is not a stand alone ground to allow judicial review.
[14]
The issue is whether the decision is reasonable;
this includes whether the evidence on the record supports the decision of the
Citizenship Judge and whether the reasons of the Judge are adequate to allow
the Court to understand why the Citizenship Judge reached the decision and to
determine whether the decision is within the range of acceptable outcomes (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses].
Standard of Review
[15]
Although this is an appeal from a decision of a
Citizenship Judge and not a judicial review, the jurisprudence has established
that the administrative law principles governing the standard of review apply:
see Canada (Minister of Citizenship and Immigration) v Rahman, 2013 FC
1274, [2013] FCJ No 1394 [Rahman], Canada (Minister of Citizenship
and Immigration) v Lee, 2013 FC 270, [2013] FCJ No 311 [Lee] etc.
[16]
The parties agree that the standard of
reasonableness applies to the Citizenship Judge’s determination of the
Application as that determination involves questions of fact and law.
The role of the
Court is, therefore, to determine whether the decision “falls
within ‘a range of possible, acceptable outcomes which are defensible in
respect of the facts and law’ (Dunsmuir, at para 47). There might be
more than one reasonable outcome. However, as long as the process and the
outcome fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.”: (Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59, citing Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]).
[17]
As noted, the inadequacy of the reasons is not a
stand alone ground to allow an application for judicial review. In Newfoundland
Nurses, the Supreme Court of Canada elaborated on the requirements of Dunsmuir,
noting at paras 14-16 that the decision-maker is not required to set out every
reason, argument or all the details in the reasons. Nor is the decision-maker
required to make an explicit finding on each element that leads to the final
conclusion. The reasons are to “be read together with
the outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes” (para 14). In addition, where necessary,
courts may look to the record “for the purpose of
assessing the reasonableness of the outcome” (para 15). The Court summed
up their guidance in para 16:
In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
[18]
On the other hand, a Court is not expected to
look to the record to fill in gaps to the extent that it rewrites the reasons.
As noted by Justice Rennie in Pathmanathan v Canada (Minister of Citizenship
and Immigration), 2013 FC 353, [2013] FCJ No 370 [Pathmanathan] at
para 28:
[28] Newfoundland Nurses
does not authorize a court to rewrite the decision which was based on erroneous
reasoning. The reviewing court may look to the record in assessing whether a
decision is reasonable and a reviewing court may fill in gaps or inferences
reasonably arising and supported by the record. Newfoundland Nurses is
a case about the standard of review. It is not an invitation to the
supervising court to re-cast the reasons given, to change the factual
foundation on which it is based, or to speculate as to what the outcome would
have been had the decision-maker properly assessed the evidence.
The Applicant’s Position
[19]
The applicant submits that the Citizenship
Judge’s residency assessment is unreasonable because there was insufficient
evidence on the record to support the decision. The applicant argues that,
overall, there is no information in the reasons or on the record to explain how
the Citizenship Judge concluded that Mr Safi met the residency requirements
based on the Judge’s review of the passport documents; his brief notations do
not reveal anything.
[20]
The applicant notes that a person applying for
citizenship has the onus to establish that all requirements for citizenship
have been met, including that they were physically present. Mr Safi must,
therefore, establish his physical presence in Canada for 1095 days between
September 13, 2006 and April 9, 2010. There were discrepancies in Mr Safi’s
documents, including the reported days of absences (108 or 160 days), and the
Citizenship Judge’s handwritten marks on the record do not reveal whether he
considered the discrepancies or simply calculated the days and found it to
still be adequate regardless of the discrepancies.
[21]
The discrepancies in Mr Safi’s absences from Canada included the dates, the countries visited, and the number of trips. The ICES report
only confirms his arrivals to Canada and does not indicate the dates of his
departures from Canada. The only document that would verify Mr Safi’s absences
from Canada is his Afghan passport. That passport raises several important
concerns: some of the stamps on the passport are in other languages; some of
the stamps are illegible; and, some of the stamps do not indicate the country
where the stamp was issued. There is no information to suggest that the judge
knew the languages used for the various country stamps. The applicant submits
that these concerns make it impossible to know whether Mr Safi’s travel to
and/or from other countries occurred during the relevant period. The applicant
highlights the stamps from India which indicate that Mr Safi departed India on some date in September 2009, but his arrival date in India cannot be deciphered. Moreover,
Mr Safi did not list India as a country that he visited.
[22]
The applicant also notes that Mr Safi only
declared four visits to the Ukraine on his Application and Residency
Questionnaire for the relevant period, yet there are as many as 24 stamps on Mr
Safi’s passport apparently from Ukraine. These stamps are not sufficiently
clear to determine the dates of arrival and departure in the Ukraine.
[23]
The applicant also highlights that the name on
Mr Safi’s Afghan passport differs from the name on his Chinese Visa which
indicates H Abduihashim. There is no indication on the record that any
explanation for this discrepancy was provided to the Citizenship Judge.
[24]
In addition, the applicant submits that the
other discrepancies between Mr Safi’s Application and Residency Questionnaire,
particularly his response that he was a citizen of no other country and his
response that he lived in the Ukraine, are of concern because there was little
objective evidence of his ties to Canada. His registration at Yorkdale Adult
Learning Centre and Hardington LINC, do not indicate whether he attended or
completed the courses. In addition, he was unemployed throughout the period,
yet he traveled abroad.
[25]
The applicant argues that these circumstances
are different from those in Lee where there were only passive indicia of
residency in dispute. In this case, the passport information provides objective
evidence of entering and exiting other countries and raises concerns that
remain unresolved.
[26]
The applicant argues that these circumstances
are more analogous to those in Rahman. In Rahman, as in this
case, the declared absences were consistent with the ICES report. However, the
Court found that the Citizenship Judge erred in failing to consider a second
passport which made it impossible to determine where the applicant had traveled
in the relevant period.
[27]
The applicant also relies on Canada (Minister of Citizenship and Immigration) v Raphaël, 2012 FC 1039, [2012] FCJ
No 1121 [Raphaël] where the Court found that gaps in the evidence had
not been analyzed, making it impossible to understand the reasoning. In this
case, there are no gaps per se, but there is a lack of clarity in the evidence
which the Citizenship Judge did not probe and did not resolve.
[28]
The applicant further submits that the reasons
of the Citizenship Judge are not adequate and do not permit the Court to
determine the reasonableness of the decision. (Canada (Minister of
Citizenship and Immigration) v Jeizan, 2010 FC 323, [2010] FCJ No 373, [Jeizan],
Newfoundland Nurses).
[29]
The applicant notes that adequate reasons are
essential because the Minister is required to grant citizenship once the
Citizenship Judge approves the Application. (Canada (Minister of
Citizenship and Immigration) v Mahmoud, 2009 FC 57, [2009] FCJ No 91 [Mahmoud]).
In addition, subsection 14(2) of the Act imposes an obligation on a Citizenship
Judge to provide the Minister with the reason for approving or not approving an
Application. The reasons provided in this case do not meet that requirement.
[30]
Although the ICES report and Residency
Questionnaire are not inconsistent with respect to the dates of Mr Safi’s
arrivals to Canada, the simple matching of these dates is not enough to explain
or justify the finding that he met the residency requirement. The applicant
submits that the evidence on the record is unclear and that the Citizenship
Judge should have explained how he resolved the lack of clarity and reached the
conclusion that he did.
[31]
The applicant argues that the marks and
notations that the arrival dates in the ICES report match the dates noted on
the Residency Questionnaire shows that the Citizenship Judge failed to grasp
the concerns about the evidence that were raised on the record. The
Citizenship Judge does not acknowledge the discrepancies, the fact that Mr Safi
did not state he had traveled to India, the many stamps on his passport from Ukraine, the illegibility of other stamps or the Chinese Visa issued in another name.
[32]
The applicant acknowledges that the record may
be considered as part of and to support the reasons and that the Citizenship
Judge made some marks and notations on the documents, including on the copies
of pages of the passport showing the stamps, but argues that these marks and
notations cannot be considered reasons. The notations suggest that the
Citizenship Judge made some assumptions, which are not supported by sufficient evidence.
[33]
The applicant also points out that the
Citizenship Judge noted in the reasons box of the form, “no income but travels”
but he did not indicate whether he had satisfied himself about this apparent
concern.
The Respondent’s position
[34]
The respondent submits that the Citizenship
Judge applied the physical presence in Canada test and was satisfied that Mr
Safi was present in Canada the required number of days. As noted in Canada
(Citizenship and Immigration) v Hannoush, 2012 FC 945, [2012] FCJ No 1040 [Hannoush],
where it is clear that the applicant for citizenship has established 1095 days
in the four year period, it is not necessary to consider other tests or for the
judge to indicate exactly what test he was applying.
[35]
The discrepancy between the Citizenship
Application and the Residency Questionnaire indicating absences of 108 and 160
days is immaterial because Mr Safi clearly satisfied the physical presence
test. Similarly, the applicant’s arguments that there was little evidence of
his ties to Canada in terms of employment and education are immaterial to the
physical presence test.
[36]
The respondent argues that the decision is
reasonable and the reasons of the Citizenship Judge are completely adequate.
The reasons read alongside the record show that the Judge scrutinized the
passport stamps and verified and reconciled the declared absences with the ICES
report.
[37]
The respondent notes that a hearing was held.
The reasons indicate that the Citizenship Judge intended to review the ICES
report once provided and that he did so. The handwritten notations on the
documents included in the record, particularly the passport documents and the
ICES report, show that the discrepancies were considered and the Citizenship
Judge found that the data was consistent and was satisfied that Mr Safi had
spent more than 1095 days in Canada. The respondent suggest that the
Citizenship Judge’s deletion of the notation, “officer
error in calculating the relative material period” followed by “it is correct” shows that the discrepancy was
immaterial to affect Mr Safi’s eligibility.
[38]
The respondent submits that the Citizenship
Judge was entitled to place significant weight on the ICES document as reliable
evidence of Mr Safi’s arrivals in Canada. The respondent argues that the
present facts are analogous to those in Lee where the Court found that
the ICES report was the main basis for the decision, that the weight attached
to the report by the Judge was within the Judge’s discretion and that reviewing
courts are not to reweigh the evidence that was before the decision-maker
(paras 38 and 48).
[39]
The respondent argues that the applicant simply
does not agree with the decision and now seeks a reweighing of the evidence,
which is not the role of the Court on appeal.
The decision is not reasonable
[40]
It is obvious that the Citizenship Judge was
applying the physical presence test [Hannoush] and need not have
specifically stated that this was the test applied. However, the Citizenship
Judge’s mathematical calculation based on a comparison of the ICES report and
Mr Safi’s Application for Citizenship and Residency Questionnaire is not
sufficient to justify the conclusion that Mr Safi had met the requirements. The
ICES report only provides the dates of his arrivals into Canada and does not confirm the period of time that he may have been out of the country.
[41]
The lack of evidence about Mr Safi’s ties to Canada is not relevant because the Citizenship Judge applied a quantitative assessment of
physical presence and not a qualitative assessment of residency.
[42]
Some of the discrepancies in the evidence noted
by the applicant are not important. For example, Mr Safi’s response that he
lived in the Ukraine from 1998 to 2006 is likely based on a simple
misunderstanding of a confusing question and is not an inconsistency given that
the dates precede his arrival in Canada. Similarly, Mr Safi’s response that he
is a citizen of no other country when he had previously indicated he was a
citizen of Afghanistan is not an inconsistency given the use of the term “no
other country”.
[43]
The evidence on the record which is problematic
and requires more careful scrutiny is that relating to his travels outside
Canada, when and where he traveled and for how long. Although the respondent
argues that the Citizenship Judge “scoured” the entries and satisfied himself
that the evidence supported the days of residence in Canada, I do not agree
that the record supports the assertion that there was any such careful
analysis.
[44]
The Citizenship Judge’s remarks and notations
suggest that he did the calculation of days based on the ICES report. While the
respondent asserts that the Judge placed significant weight on the ICES report
and that the Court should not reweigh the evidence, it is not clear whether the
Citizenship Judge in fact did place more weight on the ICES report, unlike Lee
where the Citizenship Judge stated that he did. In the present case, had the
Citizenship Judge indicated that he weighed the ICES report more heavily than
the other information on the record, the Court could possibly conclude that the
Citizenship Judge considered the discrepancies – including the many illegible
passport stamps, Mr Safi’s failure to declare that he had traveled to India,
and the Chinese Visa issued in another name – and was still satisfied that Mr
Safi met the residency requirement. However, this is not what the reasons
reveal. As noted below, the reasons are inadequate and reveal little to assist
the Court.
[45]
In the present case, even if it is surmised or
assumed that the Citizenship Judge placed more weight on the ICES report, he
did so while ignoring or misunderstanding other evidence on the record which
should have alerted him to probe further.
[46]
With respect to the adequacy of the reasons,
although this is not a stand alone ground for judicial review, the remarks in
the reasons box of the Notice to the Minister of the Decision cannot really be
considered reasons at all.
[47]
Although the Notice to the Minister of the
Decision appears to contemplate short reasons, there should be a summary or at
least a mention of the relevant considerations and an indication of what, if
any, evidence has been given more weight, an explanation of why other evidence
has been rejected or an explanation how that evidence has been understood. The
Act requires that the Citizenship Judge provide reasons and not merely
reminders to check documents and indications in the form of check marks that
this has been done. As noted by Justice Hughes in Mahmoud at para 6,
reasons are essential because once approved, the Minister is required to grant
citizenship:
[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.
[48]
The Minister needs to be able to assess whether
the decision should be appealed, as does the applicant where the Application is
refused, and the Court needs to be able to determine whether any appeals should
be granted.
[49]
As noted in Jeizan by Justice de Montigny
at para 17:
[17] Reasons for decisions are adequate
when they are clear, precise and intelligible and when they state why the
decision was reached. Adequate reasons show a grasp of the issues raised by
the evidence, allow the individual to understand why the decision was made and
allow the reviewing court to assess the validity of the decision: see Lake
v. Canada (Minister of Justice), 2008 SCC 23, [2008] S.C.J. No. 23 at para.
46; Mehterian v. Canada (Minister of Employment and Immigration), [1992]
F.C.J. No. 545 (F.C.A.); VIA Rail Canada Inc. v. National Transportation
Agency, [2001] 2 F.C. 25 (F.C.A.), [2001] 2 F.C. 25 (C.A.), at para. 22; Arastu,
above, at paras. 35-36.
[50]
In the present case, the Citizenship Judge’s
remarks are more in the nature of “notes to self” about the follow-up needed
and do not reveal any reasoning.
[51]
I have considered the guidance of Newfoundland
Nurses and have looked to the record to supplement and support the outcome.
The notations do not reveal whether the Citizenship Judge critically examined
the discrepancies in the documents and the passport stamps or actually had the
ability to determine the dates of the stamps, the country that issued them, or
the language in which these were stamped. This type of reliance on the record
to supplement the decision goes well beyond what was contemplated in Newfoundland
Nurses and requires the Court to speculate about whether the Citizenship
Judge was aware of and considered the problems with the evidence. The Court
cannot rewrite the decision to provide reasons which simply are not there (Pathmanathan).
[52]
The reasons in Lee which Justice
Strickland noted were brief were far more revealing than the reasons in this
case. In Lee it was clear that the Citizenship Judge relied primarily on
the ICES report. At para 12, the Court sets out the reasons at issue:
[12] […] The “reasons” section of that
form is completed as follows:
After very careful consideration of all
of the documentary evidence along with the verbal evidence presented at the
hearing, I am satisfied that [the] applicant, on the balance of probabilities,
meets the requirements of 5 (1)(c) [of the Citizenship Act]. I based my
decision mostly on the strength of the ICES report that shows no entries into Canada during [the] review period.
[53]
Justice Strickland referred to the guidance of Newfoundland
Nurses, noting at para 49:
[49] Although the Citizenship Judge’s
reasons could certainly have been more detailed, that alone is not a sufficient
basis to allow the appeal. Rather, the question is whether his reasons allow
this Court to understand why he made the Decision and permit a determination of
whether his conclusion falls within the range of acceptable outcomes.
[54]
Justice Strickland added at para 51, that “in this case the existence of justification of the
decision-making process is relatively limited […]”, but concluded that
the decision was reasonable.
[55]
In the present case, the reasons are far briefer
than those in Lee, and the existence of justification for the
decision-making process is far more limited; rather, it is impossible to
determine whether the decision meets the Dunsmuir standard.
[56]
The remarks set out in the space for reasons in
this case leave me in a similar position as Justice Boivin (as he then was) in Raphaël,
as I am not able to understand the Citizenship Judge’s reasons or the relevant
factors that led him to be satisfied that Mr Safi met the residency test. As
Justice Boivin noted at para 28:
[28] It is not up to this Court to
reassess the evidence submitted by the respondent. That being the case, the
Court can only note that several gaps in the evidence do not seem to have been
considered or analyzed by the citizenship judge (Canada (Citizenship and
Immigration) v Abou-Zahra, 2010 FC 1073, [2010] FCJ No 1326; Canada
(Citizenship and Immigration) v Al-Showaiter, 2012 FC 12, [2012] FCJ No 7).
Contrary to the respondent’s argument, the Court is unable to understand the
citizenship judge’s reasoning on the mere reading of the reasons and notes and
comprehend what were the relevant factors or documents that convinced him that
the respondent met the residence tests (Saad v Canada (Citizenship and
Immigration), 2013 FC 570, [2013] FCJ No 590). In fact, the respondent is
in effect asking this Court to surmise the citizenship judge’s reasoning. The
respondent did not convince this Court that the citizenship judge’s decision
falls within a range of possible, acceptable outcomes in respect of the facts
and law.
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