Docket: T-81-15
Citation:
2015 FC 1029
Ottawa, Ontario, August 31, 2015
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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NINO MONGIOVI
GENTILE
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant, the Minister of Citizenship and
Immigration, seeks judicial review under section 22.1 of the Citizenship Act,
RSC 1985, C-29, as amended [Act], of the decision of a Citizenship Judge, dated
December 9, 2014, that approved the Citizenship Application [application] of
the respondent, Mr Nino Mongiovi Gentile, pursuant to subsection 5(1) of the
Act. The Minister argues that the Citizenship Judge erred in fact and law and
that the reasons of the Judge are inadequate and do not permit this Court to
determine whether the decision is reasonable.
[2]
For the reasons that follow, the application for
judicial review is allowed. The Citizenship Judge made erroneous findings of
fact and concluded that the respondent had met the test for residency from Papadogiorgakis
(Re), [1978] 2 FC 208 [Papadogiorgakis]. However, the reasons for
the decision do not permit the Court to determine whether the Citizenship Judge
fully grasped the issues or how the Judge analyzed the evidence and reached the
conclusion that the respondent’s residence in Canada during the relevant period
satisfied the test in Papadogiorgakis and, in turn, to determine whether
the Judge reached a reasonable outcome.
Background
[3]
The respondent, Mr Gentile, a citizen of
Venezuela, became a permanent resident of Canada on June 14, 1985, through
spousal sponsorship by his wife. Mr Gentile and his family returned to
Venezuela and remained there from 1985 until December 17, 2006. He returned to
Canada briefly in 2002, and in 2003 applied to renew his permanent resident
status. Mr Gentile and his family returned to Canada in 2006 and resided with
his sister-in-law until 2009.
[4]
On September 30, 2009, Mr Gentile applied for
Canadian citizenship on the basis that he had resided in Canada for three out
of the previous four years (from September 30, 2004 to September 30, 2009) and
had met the residency requirements of subsection 5(1) of the Act.
[5]
Subsection 5(1), as it read at the relevant
time, provided:
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5.
(1) The Minister shall grant citizenship to any person who
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5.
(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
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(a)
makes application for citizenship;
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a)
en fait la demande;
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(b)
is eighteen years of age or over;
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b)
est âgée d’au moins dix-huit ans;
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(c)
is a permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act, and has, within the four years immediately
preceding the date of his or her application, accumulated at least three
years of residence in Canada calculated in the following manner:
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c)
est un résident permanent au sens du paragraphe 2(1) de la Loi sur
l’immigration et la protection des réfugiés et a, dans les quatre ans qui
ont précédé la date de sa demande, résidé au Canada pendant au moins trois
ans en tout, la durée de sa résidence étant calculée de la manière suivante :
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(i)
for every day during which the person was resident in Canada before his
lawful admission to Canada for permanent residence the person shall be deemed
to have accumulated one-half of a day of residence, and
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(i)
un demi-jour pour chaque jour de résidence au Canada avant son admission à
titre de résident permanent,
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(ii)
for every day during which the person was resident in Canada after his lawful
admission to Canada for permanent residence the person shall be deemed to
have accumulated one day of residence;
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(ii)
un jour pour chaque jour de résidence au Canada après son admission à titre
de résident permanent;
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(d)
has an adequate knowledge of one of the official languages of Canada;
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d)
a une connaissance suffisante de l’une des langues officielles du Canada;
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(e)
has an adequate knowledge of Canada and of the responsibilities and
privileges of citizenship; and
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e)
a une connaissance suffisante du Canada et des responsabilités et avantages
conférés par la citoyenneté;
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(f)
is not under a removal order and is not the subject of a declaration by the
Governor in Council made pursuant to section 20.
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f)
n’est pas sous le coup d’une mesure de renvoi et n’est pas visée par une
déclaration du gouverneur en conseil faite en application de l’article 20.
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[6]
Paragraph 5(1)(c), in other words, requires that
the permanent resident accumulate 1095 days of residence in the 1460 day period
preceding their application.
[7]
Mr Gentile’s application and Residency
Questionnaire [RQ] are not consistent in setting out his absences from Canada
in the relevant period with respect to particular dates and the totality of the
absences. Mr Gentile also provided two passports with various exit and entry
stamps including from Canada, US, Venezuela and Curaçao. An Integrated Customs
Enforcement System [ICES] report also shows Mr Gentile’s entries to Canada in
November 2005, December 2006, January 2008 and March 2008.
[8]
The record also includes cell phone bills,
credit card statements, the respondent’s driver’s licence and health card,
other bills that post-date the relevant period, his Ontario health claim
history, and income tax assessments for 2007, 2008 and 2009.
[9]
Mr Gentile states that he was present in Canada
for 1028 days in the relevant period, a shortfall of 67 days of the required
1095 days (or an absence of 432 days). The applicant notes that, on his RQ, Mr
Gentile declared only 198 days of absence, but the record demonstrates 427 days
of absence in the relevant period.
[10]
Mr Gentile was not employed in 2005 and 2006. His
application indicates that he was employed by Aurora Beverage in Barrie,
Ontario between January 2007 and December 2007, was employed by 801 Packaging
in Barrie, Ontario in 2008, was not employed in 2009, and began to work for Ma-Nina
Ltd in January 2010 (outside the relevant period).
The Decision Under Review
[11]
In a short decision, the Citizenship Judge noted
that the onus was on Mr Gentile to prove that he meets the residence
requirement.
[12]
The Citizenship Judge stated that he applied the
“analytical approach” from Papadogiorgakis to determine whether Mr
Gentile satisfied the residency requirement. In Papadogiorgakis, the
Court considered whether an applicant who had been absent from Canada attending
university could meet the residency requirements. The Citizenship Judge simply
cited the following passage from Papadogiorgakis:
A person with an established home of his own
in which he lives does not cease to be resident there when he leaves it for a
temporary purpose whether on business or vacation or even to pursue a course of
study. The fact of his family remaining there while he is away may lend support
for the conclusion that he has not ceased to reside there. The conclusion may
be reached, as well, even though the absence may be more or less lengthy. It is
also enhanced if he returns there frequently when the opportunity to do so
arises.
It is, as Rand J. appears to me to be saying
in the passage I have read, "chiefly a matter of the degree to which a
person in mind and fact settles into or maintains or centralizes his ordinary
mode of living with its accessories in social relations, interests and
conveniences at or in the place in question.
[13]
The Citizenship Judge noted under the heading
“Facts”, that Mr Gentile became a permanent resident in 1985, has lived
permanently in Canada since December 2006, worked at the water plant in Barrie
from 2007 to 2009, began to work for Ma-Nina Ltd after 2009, bought a house in
2009, and opened a restaurant in 2012. The Citizenship Judge also stated that
Mr Gentile was convinced that when he applied for citizenship that he met
the residency requirement.
[14]
The Citizenship Judge then found that:
• Mr Gentile presented Notices of
Assessment indicating an income consistent with full-time employment;
• Mr Gentile presented an exact account of his absences from
Canada, which can be verified against his passport and an ICES report;
• Mr Gentile’s history of medical visits
in Canada demonstrates a use of medical services consistent with that of a
person residing in Canada during the relevant period; and,
• Mr Gentile submitted his application
believing that short vacations in the relevant period would not count against
his residence.
[15]
The Citizenship Judge concluded that Mr Gentile
had met the residency requirements under paragraph 5(1)(c) of the Act.
The Issues
[16]
The applicant submits that the decision is not
reasonable and argues:
The Citizenship Judge erred in law by
failing to consider whether the respondent had provided false or misleading
information (paragraph 29(2)(a) of the Act):
The Citizenship Judge erred in fact
by finding that the respondent had met the residence requirement, ignored
evidence and reached conclusions that were not supported by the evidence; and,
The Citizenship Judge’s reasons are
inadequate as they do not permit the Court to determine whether the decision is
reasonable.
Standard of Review
[17]
The parties agree that the standard of
reasonableness applies to the Citizenship Judge’s determination of the
application for citizenship as that determination involves questions of fact
and law.
[18]
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
at para 59, [2009] 1 S.C.R. 339 [Khosa], citing Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]).
[19]
The applicant argues that the reasons are
inadequate, but agrees that the inadequacy of the reasons is not a stand-alone
ground to allow an application for judicial review. In Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708 [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, every 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” (at para 14). In addition, where necessary, courts
may look to the record “for the purpose of assessing
the reasonableness of the outcome” (at para 15). The Court summed up the
principle at 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.
[20]
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 (Pathmanathan
v Canada (Minister of Citizenship and Immigration), 2013 FC 353 at para 28,
[2013] FCJ No 370 [Pathmanathan]).
Did the Citizenship Judge
err by failing to consider whether the respondent provided false or misleading
information?
[21]
The applicant submits that the Citizenship Judge
failed to consider paragraph 29(2)(a) of the Act, which provides that it is an
offence under the Act to make false representations, commit fraud or knowingly
conceal a material circumstance. However, the applicant notes that this issue
was not raised in the report provided to the Citizenship Judge by the Citizenship
and Immigration of Canada Officer [CIC Officer]. The applicant submits that,
nonetheless, the Citizenship Judge had an obligation to check that the
information in the application and the RQ, which the respondent had attested to
be true, was in fact true.
[22]
The respondent submits that there was no
intention to misrepresent any information and that any discrepancies were the
result of human error and most were corrected or clarified before the decision
was made. In addition, the discrepancies raised by the applicant were not
material or significant, and many relate to a period of time beyond the
relevant period and during the relevant period when the respondent clearly
indicated he lived outside of Canada.
[23]
Although the Act provides for an offence for
making false representations, I find that this issue should not be addressed on
judicial review. The applicant raised this issue to highlight the importance of
accuracy in the application for citizenship and the obligation on the
Citizenship Judge to carefully scrutinize the evidence. As noted below, there
were discrepancies regarding the respondent’s presence or absence from Canada,
which the Citizenship Judge appears to have ignored, but the key issue is
whether the Judge reasonably found that the respondent met the test for
residence that the judge applied despite the respondent’s absences from Canada.
Did the Citizenship Judge err by finding that the
respondent had met the residence requirement; did the Judge ignore evidence and
reach conclusions that were not supported by the evidence?
The Applicant’s Submissions
[24]
The applicant notes that the onus was on the
respondent to provide evidence to establish his residency in Canada for three
out of the four years preceding his application.
[25]
The applicant submits that in applying Papadogiorgakis,
the Citizenship Judge was required to determine that the respondent had
established a residence of his own in Canada for a period of at least three
years preceding his application and that he maintained an established residence
throughout the relevant time period.
[26]
The applicant submits that the evidence does not
support that the respondent established himself in Canada prior to his absences
or that he had permanently lived in Canada with only some short term travel. Rather,
the evidence demonstrates that the respondent left Canada after obtaining
permanent resident status in 1985 and resided in Venezuela with his family,
applied for a multiple entry visa to Canada in Venezuela in 2002, made an
urgent application for a permanent residence card in 2003, and was present in
Canada for only 29 days during 2005 and 2006. The applicant argues that the
evidence does not demonstrate that the respondent established any residence in
Canada between September 2005 and December 17, 2006, when he states he returned
to Canada to reside.
[27]
The applicant argues that there is no evidence
that the majority of the respondent’s absences were temporary and little evidence
of the respondent’s ties to Canada or that he had established a qualitative
attachment to Canada during the relevant period.
[28]
The applicant further submits that the passive
evidence provided by the respondent, including cell phone, bank and credit card
statements, is not enough to show a qualitative connection to Canada. The
health records, which show medical appointments and tests are grouped in
periods of time and only establish time spent in Canada to attend medical
appointments. Although the medical records are consistent with other evidence
of the time the applicant was present in Canada, this does not establish a
connection with Canada.
[29]
The applicant also points to the evidence of the
CIC Officer which provides details of the respondent’s travel history and
compares this with the information provided by the respondent in his
application and his RQ, noting the gaps and inconsistencies in days present and
absent from Canada. The applicant argues that the conclusion of the Citizenship
Judge that the respondent “presented an exact account of his absences from
Canada on his RQ” and that “[t]he absences can be verified against his passport
and an ICES report” is clearly wrong.
[30]
Similarly, the conclusion that the respondent’s
income tax assessments were consistent with full-time employment in Canada
during the relevant period is not supported by the evidence.
[31]
The applicant submits, more generally, that the
Citizenship Judge’s reasons are so inadequate that they do not permit the Court
to determine if the decision is reasonable. Subsection 14(2) of the Act
provides that decisions to approve or deny a citizenship application must be
accompanied by reasons. In the present case, the Citizenship Judge recited some
information, much of which was inaccurate, and set out conclusions, but the
reasons do not reveal how the Judge resolved the discrepancies in the evidence
and what evidence the Judge relied on to find that the residence requirement
was met.
[32]
In addition, the record in this case does not
assist the Court in understanding the reasons; rather, it highlights
information that was before the Citizenship Judge which does not support the
conclusion that the residency requirement was met.
The Respondent’s
Submissions
[33]
The respondent notes that the Papadogiorgakis
test applied by the Citizenship Judge does not require strict physical presence
in Canada. Regardless, the respondent argues that he provided evidence of his
presence in Canada, particularly since December 17, 2006, including health
forms, tax documents, bank account statements and cell phone bills. He also
demonstrated his qualitative attachment to Canada in the relevant period.
[34]
The respondent acknowledges that there were contradictions
in the evidence regarding his reported absences from Canada, most of which were
due to human error and were not material, and submits that he was physically
present in Canada after he returned to live in Canada on December 17, 2006. The
respondent adds that the Citizenship Judge focused on the period subsequent to
December 2006, given that the respondent had clearly indicated that he did not
reside in Canada until that date.
[35]
The respondent argues that his presence in
Canada (although physical presence was not the test applied), his family and
his employment are all evidence of his qualitative attachment to Canada.
[36]
The respondent submits that the Citizenship
Judge is presumed to have considered all of the evidence and is not required to
refer to every piece of evidence (Khosa, at paras 61, 64). The
Citizenship Judge considered the discrepancies in the respondent’s application
and was satisfied with the evidence before him.
[37]
The respondent further submits that the
Citizenship Judge provided brief but adequate reasons. A Citizenship Judge is
only required to provide sufficient grounds to allow the reviewing court to
understand why a decision was reached and to assess its reasonableness (Canada
(Minister of Citizenship and Immigration) v Lee, 2013 FC 270 at para 37,
[2013] FCJ No 311). In this case, it is clear that the Citizenship Judge found
that the respondent’s evidence was compelling, he was credible and he had
demonstrated qualitative ties to Canada.
The Citizenship Judge’s Decision is Not Reasonable
[38]
Given that the Citizenship Judge stated that he
would apply the test from Papadogiorgakis, it is not necessary to
attempt to reconcile the various accounts of the respondent’s presence or
absence from Canada and the inconsistencies between his RQ and application with
the passport information. The only conclusion to be reached is that there were
inconsistencies which the Citizenship Judge appears to have ignored. However,
the Citizenship Judge did acknowledge that the applicant fell short of the
required days to establish his physical presence in Canada and, as a result,
applied the qualitative test.
[39]
The Citizenship Judge quoted a passage from Papadogiorgakis,
but did not go on to describe how he interpreted or understood the test. Nor
did the Citizenship Judge refer to any of the subsequent jurisprudence
regarding that qualitative test, sometimes referred to as the “centralized mode
of living” test.
[40]
In Martinez-Caro v Canada (Minister of
Citizenship and Immigration), 2011 FC 640, 391 FTR 138, Justice Rennie, as
he then was, noted the history of the three tests that have emerged to determine
residency, the modification of the qualitative tests and his preference for the
physical presence test, but ultimately confirmed that as long as the
Citizenship Judge identifies the test to be used, the reasonableness of the
decision will be determined in accordance with the test applied (at para 26).
[41]
With respect to the evolution of the three tests
for residency, Justice Rennie noted at para 7:
Since the Act received Royal Assent
in 1977, three lines of reasoning have emerged with respect to the residency
requirement found in subsection 5(1)(c) of the Act: the centralized mode
of living test; the so-called six-factor Koo (Re) test, which is focused
on where the applicant regularly, normally or customarily lives, and the
physical presence test, which is focused on whether the applicant’s physical
presence in Canada meets or exceeds 1,095 days. Justice Sean Harrington
succinctly summarised the three schools in Canada (Minister of Citizenship
& Immigration) v Salim, 2010 FC 975 at para 1:
According to one school of thought,
residence means physical presence. Two others state that in certain
circumstances a person satisfies the requirement if here in spirit, but not in
body.
[…]
For over 30 years, we have been
plagued with three residency tests or, as some would have it, two tests, the
second having two branches.
[42]
Justice Rennie noted, at para 10, that Papadogiorgakis
was one of the first cases to address the equivalent of subsection 5(1)(c) of
the Act and described the outcome at para 11:
The Citizenship Judge refused
Papadogiorgakis’s application on the basis that he had not accumulated three
years of residency in the four years immediately preceding his application. On
appeal, Associate Chief Justice Thurlow held that even though Papadogiorgakis
had not accumulated 1,095 days of residence in Canada, because he had
“centralized his mode of living in Canada” the three year residency requirement
had indeed been met: Papadogiorgakis, para 17. Thurlow ACJ allowed the
appeal and found that Papadogiorgakis had met the residency requirement.
[43]
In Canada (Minister of Citizenship and
Immigration) v Purvis, 2015 FC 368, [2015] FCJ No 360, Justice Mosley
provided an overview of the three tests which may be applied by a Citizenship
Judge, noting that the tests are really two and that a Judge cannot blend the
quantitative and qualitative tests:
[26] It is settled law that a Citizenship
Judge may reasonably rely on one of three residence tests: (1) the quantitative
test set out in Pourghasemi (Re), [1993] FCJ No 232 (TD) [Pourghasemi];
(2) the qualitative test set out in Papadogiorgakis (Re), [1978] FCJ No
31 (TD) [Papadogiorgakis]; or (3) the modified qualitative test set out
in Koo (Re), [1992] FCJ No 1107 (TD) [Koo].
[27] As I explained in Hao v Canada
(Citizenship and Immigration), 2011 FC 46 at paras 14-19, these cases
really set out two tests because Koo is an elaboration on Papadogiorgakis.
These are the quantitative physical presence test from Pourghasemi and
the qualitative test from Koo and Papadogiorgakis.
[28] However, the jurisprudence of this
Court prevents Citizenship Judges from “blending” the quantitative and
qualitative tests in the same case: see e.g. Mizani v Canada (Citizenship
and Immigration), 2007 FC 698 at para 13; Vega v Canada (Citizenship and
Immigration), 2009 FC 1079 at para 13; Saad v Canada (Citizenship and
Immigration), 2013 FC 570 at para 19; Canada (Citizenship and
Immigration) v Bani-Ahmad, 2014 FC 898 at paras 18-19 [Bani-Ahmad].
[44]
In the present case, the Citizenship Judge did
not blend the tests, although he did refer to Mr Gentile’s “short” vacations
and he found that Mr Gentile provided exact accounts of his absences, which is
a finding not supported by the evidence. The Citizenship Judge appears to have
blended the evidence and relied on physical presence during some periods after
December 2006 to support the qualitative test. It is clear that the Citizenship
Judge, despite not scrutinizing the respondent’s absences from Canada,
concluded the respondent fell short of the required 1095 days then moved on to
apply Papadogiorgakis, which the Judge referred to as “analytical”. The
reasonableness of the decision must be determined on the basis of how the
Citizenship Judge applied the evidence to this test.
[45]
The Citizenship Judge recited facts which are
not accurate, including regarding the respondent’s employer and when the
respondent was employed. The Citizenship Judge also appeared to take into
account that the respondent purchased a home in 2009 (after the relevant
period) and established a restaurant business in July 2012 (also after the
relevant period). He then set out conclusions which are also not supported by
the evidence.
[46]
First, the Citizenship Judge stated that Notices
of Assessment are consistent with full-time employment. However, the respondent
was not employed in 2005, 2006 or 2009, so these notices could only show
employment for two years of the relevant four year period.
[47]
Second, the Citizenship Judge stated that the
respondent provided an exact account of his absences on his RQ. This is not the
case. The Citizenship Judge stated that the absences can be verified against
his passport and ICES, which is also not the case.
[48]
Third, the Citizenship Judge stated that the
respondent’s medical visits demonstrate use of medical services consistent with
that of a person residing in Canada “during the times
the [a]pplicant claimed to reside here.” This only explains that his
medical visits occurred while he was otherwise in Canada, not how this shows a
qualitative connection to Canada.
[49]
Fourth, the Citizenship Judge stated that Mr
Gentile submitted his application believing that short vacations taken after
December 17, 2006 would not account against his residence. While that may be so,
and the Citizenship Judge appears to excuse these short absences, the relevance
of this is not clear given that the Judge applied the Papadogiorgakis
test, not the physical presence test.
[50]
The Citizenship Judge did not indicate how any
of these conclusions are relevant to the test in Papadogiorgakis,
however, the Judge understood that test.
[51]
In accordance with the principles of Newfoundland
Nurses, at para 16, I have reviewed the record in detail and it does not
shed any light on how the Citizenship Judge understood the test in Papadogiorgakis
or what evidence he relied on to find that the respondent had established a or
“a centralized mode of living” or a qualitative attachment to Canada in the
relevant time period. As the applicant notes, the evidence clearly indicates
that Mr Gentile did not establish a residence in Canada in 2005, at the
starting point of the relevant four year period, and, therefore, did not leave
that residence for a temporary purpose and then return. The respondent returned
only in December 2006, 15 months later, and lived with his sister-in-law. With
respect to the notion of a “centralized mode of living”, the Citizenship Judge
did not explain how the respondent’s time and activities in Canada, to the
extent it can be verified, established this to a sufficient degree to find that
he met the residency requirements.
[52]
Given that the test is described as qualitative
and provides an alternative where physical presence in Canada falls short of
the legislated requirements, in my view, the evidence of the qualitative
attachment or a centralized mode of living must be fairly strong.
[53]
As noted, the Citizenship Judge’s reasons do not
explain how he understood the test he applied, which he described as the
“analytical” approach, how he conducted the analysis, or what he relied on to
find such a qualitative attachment. The evidence on the record does not appear
to support such a finding.
[54]
In Canada (Minister of Citizenship and
Immigration) v Jeizan, 2010 FC 323 at para 17, [2010] FCJ No 373, Justice
de Montigny found that:
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. [Citations omitted]
[55]
The jurisprudence has established that, although
not a stand-alone ground for judicial review, reasons must permit the Court to
determine if the decision is reasonable. Adequate reasons should be clear and
intelligible and show that the decision-maker grasped of the issues raised and
explain how the decision was reached (Dunsmuir, at para 47; Newfoundland
Nurses, at para 16; Jeizan, at para 17). The reasons of the
Citizenship Judge did not do so.
[56]
The application for citizenship must be
reconsidered. Given recent amendments to the Act which have modified the role
of a Citizenship Judge, the application must be sent back for a redetermination
to a “decision-maker”.
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