Docket: T-838-15
Citation:
2015 FC 1322
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 27, 2015
PRESENT: The Honourable Mr. Justice Bell
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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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ABDELLATIF GOUZA
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the matter
[1]
This is an application for judicial review
pursuant to section 22.1 of the Citizenship Act, RSC (1985), c C-29 [the
Act], of a decision dated April 21, 2015, by which a citizenship judge approved
the citizenship application of Abdellatif Gouza [Mr. Gouza].
II.
Background and alleged facts
[2]
Mr. Gouza stated that he first arrived in Canada
in 2001. From 2001 to 2004 he pursued studies in St-Hubert, Québec, to obtain
his pilot’s license. He claimed to have obtained his private pilot’s license on
September 20, 2002, but this was a first stage in the process of becoming a
commercial pilot. In 2005, he interrupted his studies to return to Morocco,
after he had married. He stated that he did not resume his studies upon his
return to Canada in 2007.
[3]
Mr. Gouza filed a citizenship application on May
11, 2010. The reference period for this was between March 17, 2007, and May 11,
2010. In the citizenship application, he declared 1,108 days of presence and 42
days of absence, for a total of 1,150 days during the period in question.
[4]
He stated that he had returned to Morocco in
January 2010 for a duration of 42 days. He affirmed that this was the only trip
he had taken during the reference period and that upon his return to Canada he
resumed his studies to become a pilot. He completed those studies in 2012. Because
he had not completed the required number of flying hours to pilot a commercial
airplane, he had to settle for jobs that were outside of his field of study.
[5]
Mr. Gouza attended an interview with an officer
on September 17, 2012, the date on which he also successfully completed the knowledge
of Canada test. In addition to this, he completed a residence questionnaire
which he returned, along with supporting documents, on March 15, 2013.
He attended a hearing before the citizenship judge on February 23, 2015.
III.
Impugned decision
[6]
On April 21, 2015, Mr. Gouza’s Canadian
citizenship application was approved by the citizenship judge. She found that,
on a balance of probabilities and in accordance with the residence test used by
Justice Muldoon in Pourghasemi (Re), [1993] FCJ No 232, 62 FTR 122 [Pourghasemi],
Mr. Gouza had demonstrated that he satisfied the residency requirement under
paragraph 5(1)(c) of the Act.
[7]
The citizenship judge first addressed the
citizenship officer’s concern about Mr. Gouza’s trip during the reference
period. The citizenship judge concluded that there was no inconsistency in that
regard given that Mr. Gouza had declared the 42-day trip. This information was
consistent with that which was on both his residency application and
questionnaire, and with the calculations made by the citizenship officer and
the information in the Integrated Customs Enforcement System report [ICES
report].
[8]
Prior to the hearing, the citizenship judge had
asked Mr. Gouza to provide certain documents such as notices of assessment,
bank statements and information regarding his studies. In her decision, the
citizenship judge indicated that the documents submitted had confirmed Mr.
Gouza’s verbal statements. She had asked him about the absence of a notice of
assessment for the 2007 taxation year and accepted his explanations.
[9]
The citizenship judge also noted that Mr. Gouza recounted
his story in a clear and forthright manner, and that he provided precise
answers to all of the questions he was asked. The citizenship judge found no
contradictions or inconsistencies in his explanations. Mr. Gouza’s credibility
is therefore not in question here.
IV.
Issue
[10]
Having reviewed the parties’ arguments and their
respective records, I propose the following question: Was the citizenship judge’s
decision, in which she found that Mr. Gouza had satisfied the physical presence
requirement, reasonable?
V.
Standard of review
[11]
The standard of review applicable to the
decision of a citizenship judge on residence requirements is that of
reasonableness, given that such decisions involve questions of fact and of law
(Canada (Minister of Citizenship and Immigration) v Matar, 2015 FC 669,
[2015] FCJ No 683 at para 11; Kohestani v Canada (Minister of Citizenship
and Immigration), 2012 FC 373, [2012] FCJ No 443 at para 12). A decision is
reasonable if it contains sufficient reasons to allow the Court to understand
the decision-making process that was used (Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR
708 at para 16 [Newfoundland Nurses’]) and if the decision falls within “the range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir]).
VI.
Statutory provisions
[12]
Under paragraph 5(1)(c) of the Act
(reproduced in Appendix A), as it read at the time of this application for
judicial review, a person applying for citizenship
must prove that he or she resided in Canada for at least three of the four
years that preceded the date of his or her application, that is, for 1,095 days.
VII.
Analysis
[13]
The citizenship judge assessed Mr. Gouza’s
application in accordance with paragraph 5(1)(c) of the Act and the
physical presence test, as was developed by this Court in Pourghasemi,
above. Mr. Gouza had to show, on a balance of probabilities, that he met the
physical presence requirement (Taleb v Canada (Minister of Citizenship and
Immigration), 2015 FC 1147, [2015] FCJ No 1181 at para 18 [Taleb]).
[14]
First of all, I reject the Minister’s argument that
the decision of the citizenship judge was not reasonable because she relied
solely on Mr. Gouza’s verbal explanations to fill in the gaps in his record. On
the contrary, the case law indicates that not only is such an approach permissible,
but that asking questions in order to solicit answers may even be required as a
matter of procedural fairness (Taleb, above, at paras 17 and 21).
[15]
According to the Minister, the decision in El
Falah v Canada (Minister of Citizenship and Immigration), 2009 FC 736,
[2009] FCJ No 1402 [El Falah] shows that a citizenship judge cannot fill
in the gaps of an application with the applicant’s statements. In my view, this
is an erroneous interpretation that does not apply here. The facts in El
Falah involved an applicant who was seeking judicial review of a decision refusing
to grant him citizenship, arguing that the citizenship judge had not given
sufficient consideration to his oral statements. The El Falah ruling
demonstrates that judges are under no obligation to assign any probative value
to an applicant’s statements or to rely solely on such statements. Citizenship
judges are therefore free to assess statements in light of all of the evidence
in the record.
[16]
This interpretation is consistent with the
burden of proof placed on applicants as part of the citizenship application
process. The opposite conclusion proposed by the Minister, namely, that verbal statements
without corroboration are insufficient, is untenable and the Act does not
require such corroboration (Canada (Minister of Citizenship and Immigration)
v Lee, 2013 FC 270, [2013] FCJ No 311 at para 38 [Lee]).
[17]
In this case, the citizenship judge assessed Mr.
Gouza’s credibility. It should be recalled that findings based on the
assessment of credibility are owed a significant degree of deference (Canada
(Minister of Citizenship and Immigration) v Vijayan, 2015 FC 289, [2015] FCJ
No 263 at para 64). Moreover, the Minister did not actually challenge the
decision on this point, preferring instead to attack the sufficiency and
quality of the evidence adduced.
[18]
The Minister further contends that the decision
is unreasonable because the citizenship judge ought to have conducted a
specific analysis of each one of the gaps identified in the officer’s template
and indicated [translation] “how the doubts had been dispelled and which pieces of
evidence had led her to grant the applicant citizenship” (Minister’s memorandum
at para 47). I do not agree with this assertion. A judicial review is not an
occasion to microscopically examine and scrutinize the impugned decision. In
this case, the citizenship judge stated that she had relied on Mr. Gouza’s
explanations in order to fill in the gaps in his record.
[19]
In any event, it should be noted that in Newfoundland
Nurses’, above, adequacy of reasons is not a stand-alone basis for quashing
a decision on judicial review. Rather, the question is whether the reasons
allow the reviewing court to understand the reasoning behind the decision in
order to assess its reasonableness (Newfoundland Nurses’, above, at
para 17). I agree that it would have been preferable for the citizenship judge to
have provided a more in-depth explanation of her reasons; nonetheless, her decision
clearly sets out the basis on which she decided to grant citizenship to Mr.
Gouza.
[20]
Unlike cases in which the reviewing court
declares itself incapable of determining how the citizenship judge arrived at
his or her decision, as was the case in Canada (Minister of Citizenship and
Immigration) v Safi, 2014 FC 947, [2014] FCJ No 1020, the citizenship judge
in this case provides the following conclusion at paragraph 27 of her decision:
[translation]
Having carefully listened to the applicant
during our meeting, which lasted nearly an hour, and having subsequently
reviewed all of the documents in the record, I find, on a balance of
probabilities, that the applicant has met his burden of proof, as required
under the Act.
I am of the view that this conclusion is
more in line with that of the citizenship judge in Lee, in which Justice
Strickland determined that the reasons indicating that the decision was based
largely on the ICES report were sufficient in order to understand the reasoning
of the citizenship judge (Lee, above, at para 50).
[21]
The same conclusion must be applied analogously
in this case: as long as the decision of the citizenship judge clearly states
that she has relied on additional documents and Mr. Gouza’s explanations to
fill in the gaps in the record, it is not the role of a judge sitting in review
to re-weigh that evidence (Kanthasamy v Canada (Minister of Citizenship and
Immigration), 2014 FCA 113, [2014] FCJ No 472 at para 99; Canada (Minister
of Citizenship and Immigration) v Abdulghafoor, 2015 FC 1020, [2015] FCJ No
1017 at para 16; Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 61). From this I conclude that the
decision-making process of the citizenship judge is justified, transparent and
intelligible, and that her decision falls within “the
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”. (Dunsmuir, above, at para 47).
VIII.
Conclusion
[22]
The decision of the citizenship judge in finding
that Mr. Gouza had met the requirement under paragraph 5(1)(c) of the
Act, as per the physical presence in Canada requirement, is reasonable. This
Court’s intervention is therefore not required.
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