Docket: T-2144-14
Citation:
2015 FC 669
Ottawa, Ontario, May 25, 2015
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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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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DANY ROBERT
MATAR
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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 under
section 22.1 of the Citizenship Act, RSC 1985, c C-29 [the Act] of the
decision of a Citizenship Judge to approve the respondent’s application
for Canadian citizenship.
II.
Facts
[2]
The respondent landed in Canada as a permanent
resident on October 16, 2007 and applied for Canadian citizenship on July 13, 2011.
[3]
In his citizenship application, he declared 106
days of absences from Canada during the relevant period, October 16, 2007 to
July 13, 2011.
[4]
A citizenship officer reviewed his application
and on May 24, 2013, the officer sent the respondent a residence questionnaire
to complete in order to assist in determining whether he met the residency
requirements. In the residence questionnaire, the respondent declared the same
absences as in his citizenship application, all except for the last trip to
Lebanon in July 2011, which was omitted. After being transferred twice, the
file ended up in the hands of the Citizenship Judge who ultimately made
the impugned decision.
[5]
The Citizenship Judge held a hearing with the
respondent and, with the respondent’s consent, obtained a copy of the
Integrated Customs Enforcement System [ICES] report of the respondent’s entries
into Canada.
III.
The Impugned Decision
[6]
On September 22, 2014, the Citizenship Judge
approved the respondent’s application. He specified that he was using the
physical presence test for residency set out in Re Pourghasemi, [1993]
FCJ No 232, 62 FTR 122, [Re Pourghasemi] and concluded that the respondent
had demonstrated residence in Canada for the number of days claimed and that he
therefore met the residency requirement.
[7]
The Citizenship Judge noted that the respondent
had been given a residence questionnaire and that there had been questions regarding
the respondent’s credibility because the citizenship officer had had difficulty
assessing his residency. He found that the respondent was credible and that
there were no inconsistencies or contradictions in his oral or documentary
evidence.
[8]
He also noted that the respondent kept a visa
for travel to Qatar, and was satisfied that his reason for keeping such a visa
was in case he was required to travel there for work and that only three of the
trips listed in the residence questionnaire had been to Qatar.
[9]
He further stated that the respondent had
provided evidence of church involvement, as well as bank statements showing
purchases in the Gatineau/Ottawa area during the relevant period.
IV.
Issue
[10]
The sole issue raised in this matter is whether
the Citizenship Judge’s determination that the respondent had met the physical
presence test set out in Re Pourghasemi was reasonable.
V.
Standard of Review
[11]
A citizenship judge’s determination of whether
the residency requirement has been met is reviewable on a standard of
reasonableness (Kohestani v Canada (Minister of Citizenship and Immigration),
2012 FC 373 at para 12).
[12]
The determination of whether the decision is
reasonable includes consideration of whether the evidence on the record
supports the decision of the Citizenship Judge and whether the reasons are
adequate to allow the Court to understand how he reached his decision and
whether that decision falls within the range of acceptable outcomes (Canada
(Minister of Citizenship and Immigration) v Safi, 2014 FC 947 at paras 14,
17-18; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at para 16).
VI.
Preliminary Motion
[13]
The respondent asks this Court to dismiss the
application at the outset and not to consider it on its merits, due to the fact
that the applicant submitted an affidavit at the leave stage that wrongly
attributed a set of handwritten notes to the decision-maker. The applicant
emphasizes the significance of information contained in affidavits at the leave
stage and contends that leave in this case was granted, at least in part, on
the basis of these notes since the applicant had argued on leave that the
decision maker’s notes contradicted his conclusions. He relies on Balouch v
Canada (Minister of Citizenship and Immigration), 2004 FC 1599 to support
his position that the application should be dismissed since leave would likely
not have been granted if the notes hadn’t wrongly been attributed to the
Citizenship Judge.
[14]
The applicant acknowledges that the notes were
attributed to the Citizenship Judge in error, but submits that the Court should
exercise its discretion to hear the application on its merits despite this
error since: it was not intentional; the authorship of the notes does not
substantively affect the applicant’s argument that the decision is
unreasonable; and the applicant has a strong case.
[15]
In Thanabalasingham v Canada (Minister of
Citizenship and Immigration), 2006 FCA 14, the Federal Court of Appeal held
that, even where an applicant has intentionally presented false evidence on an
application for leave, which I do not suggest was the case here, the Court has
a discretion to hear the application on its merits. The Court of Appeal
provided guidance on the proper exercise of this discretion:
[10] In exercising
its discretion, the Court should attempt to strike a balance between, on the
one hand, maintaining the integrity of and preventing the abuse of judicial and
administrative processes, and, on the other, the public interest in ensuring
the lawful conduct of government and the protection of fundamental human
rights. The factors to be taken into account in this exercise include: the
seriousness of the applicant’s misconduct and the extent to which it undermines
the proceeding in question, the need to deter others from similar conduct, the
nature of the alleged administrative unlawfulness and the apparent strength of
the case, the importance of the individual rights affected and the likely
impact upon the applicant if the administrative action impugned is allowed to
stand.
[16]
Despite the error in the applicant’s affidavit,
I choose to exercise my discretion in this case to hear the application on its
merits. I am not prepared to second guess the basis on which leave was granted
and I am satisfied that the incorrect attribution of the notes was not
intentional. Further, the error does not undermine the proceeding or
substantively affect the applicant’s argument that the record does not support
that the respondent met the residency requirement, especially in light of the
fact that the notes simply listed the date stamps in the respondent’s passport
and other information already contained elsewhere in the record. Finally, even
absent the notes, the applicant has a strong case on the basis of the remainder
of the record.
[17]
Accordingly, I dismiss the respondent’s motion
and will decide the matter on its merits.
VII.
Applicant’s Position
[18]
The applicant submits that it was unreasonable
for the Citizenship Judge to find that the respondent was physically present in
Canada for the number of days he claimed, since the evidence on the record did
not support this conclusion. Rather, the exits and entries recorded in the
respondent’s passport and corroborated by the ICES report indicated that he was
absent from Canada for 539 days.
[19]
In his decision, the Citizenship Judge did not
address any of the discrepancies in the record however, nor did he conduct his
own calculation or explain how he arrived at his conclusion that the respondent
had resided in Canada for 1259 days as claimed.
[20]
The applicant also argues that the Citizenship
Judge misinterpreted the ICES report by stating that it “revealed fewer absences than those declared” by the
respondent, when in fact the ICES report contradicted the respondent’s
declarations by confirming that several of the declared returns to Canada never
actually occurred, and that the respondent’s absences were therefore greater
than stated.
[21]
Further, the Citizenship Judge relied on bank
statements that allegedly show purchases in the Ottawa/Gatineau area during the
relevant period, but failed to acknowledge that the majority of the activity in
the bank statements was accumulation of interest, and that no actual
transactions or purchases are recorded during the periods at issue.
VIII.
Respondent’s Position
[22]
The respondent submits that the applicant’s argument
is based almost entirely on the absence of re-entry stamps in his passport;
yet it is well established that passport stamps do not constitute irrefutable
evidence of a person’s movements across the Canadian border as not all
countries, including Canada, routinely stamp passports at entry (Ballout v
Canada (Minister of Citizenship and Immigration), 2014 FC 978 at para 25;
Citizenship Policy Manual CP-5 at 20; Operational Bulletins 022 (August
22, 2006)).
[23]
Since passport stamps are not a definitive
source of evidence to prove residency, the Citizenship Judge made it clear that
other supporting documents were needed for the assessment. The ICES report was
requested after the hearing specifically to address the fact that there were
missing entry stamps in the passport. The Citizenship Judge reviewed the ICES
report and concluded that there were fewer absences than those declared by the
respondent.
[24]
As with passport stamps, the ICES report does
not provide irrefutable evidence of movements across the Canadian border. This
is exactly why Citizenship Judges have the opportunity to examine further
evidence of residency and to question applicants at an interview. The
Citizenship Judge weighed the evidence before him and took into careful
consideration both the answers given to him at the hearing and the documentary
evidence, including the stamps in the respondent’s passport, the ICES report,
the bank statements, and a letter from the respondent’s pastor attesting to
regular church attendance.
[25]
After assessing the documentary and oral
evidence, he concluded that there were no inconsistencies in the
documents or oral evidence provided by the respondent, and that the respondent
was forthright and direct in answering questions and presented as credible.
IX.
Analysis
[26]
I agree with the applicant that the Citizenship
Judge erred by failing to address evidence that contradicted his conclusion.
[27]
Specifically, while the respondent declared that
he returned to Canada from Lebanon on January 18, 2010 and did not leave
again until May 13, 2010, at which time he went to Lebanon, there are
stamps in his passport showing that he entered Qatar on January 19, 2010 and
left Qatar on May 13, 2010. While the absence of stamps may not provide
irrefutable evidence of a person’s movement in and out of Canada or another
country, their presence is at minimum evidence of an arrival or departure from
a country. Yet the Citizenship Judge did not address this discrepancy in his
reasons.
[28]
Further, the Citizenship Judge did not
acknowledge and deal with the other discrepancies in the evidence, such as the
absence of either a passport stamp or an entry in the ICES report to show that
the applicant returned to Canada from May 2 to August 13, 2008 or from November
30, 2010 to July 7, 2011, as declared.
[29]
While this Court on judicial review can look to
the record in assessing the reasonableness of a decision, the Court cannot fill
in gaps to the extent that it is essentially rewriting the decision to provide
reasons which are not there. As Justice Kane wrote in Safi:
[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]
F.C.J. No. 370 [Pathmanathan] at para 28:
[28] […] 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.
[…]
[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).
[30]
I do not agree with the respondent that the
Citizenship Judge acknowledged there were inconsistencies and carefully took
into consideration all of the oral and documentary evidence. In my view, the
record does not support that such a careful analysis took place, as it does not
demonstrate that the Citizenship Judge was aware of and resolved the contradictory
evidence.
[31]
Had the Citizenship Judge indicated that he
weighed certain evidence more heavily than other evidence, the Court could
possibly have concluded that he considered the discrepancies (Safi at
para 44). However, I am unable to understand the Citizenship Judge’s reasoning
and to understand which factors and evidence led him to be satisfied that the
respondent had been in Canada for the requisite number of days. As argued by
the respondent, there are possible explanations for the discrepancies in the
evidence raised by the applicant. Without acknowledgement of these
discrepancies in the reasons, it is impossible to know whether the Citizenship
Judge was aware of them and considered the evidence critically in this regard.
As such, the reasons reveal little to assist the Court in assessing
the reasonableness of the outcome.
[32]
The Citizenship Judge’s assessment of the bank
statements does not resolve the issue either. He acknowledged that the
respondent had provided bank statements showing purchases in the
Gatineau/Ottawa area during the relevant period, but did not address that the
only activity in the bank account during the periods at issue – May 2 to August
13, 2008, January 18 to May 13, 2010, and November 30, 2010 to July 7,
2011 – was the accumulation of interest.
[33]
In summary, I am unable to ascertain from the
reasons, when read in the context of the record, how the Citizenship
Judge reached his decision, or to determine whether the conclusion falls
within the range of acceptable outcomes.
[34]
For these reasons, the application for judicial
review is allowed and the matter is to be remitted to another decision-maker
for redetermination. There is no question for certification.
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