Docket: T-335-15
Citation:
2015 FC 1136
Ottawa, Ontario, October 5, 2015
PRESENT: The
Honourable Mr. Justice Gleeson
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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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ZAHRA
GOLAFSHANI
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review by
the Minister of Citizenship and Immigration [the applicant] pursuant to section
22 to of the Citizenship Act, RSC 1985, c C-29 [the Act], from the
decision of a citizenship judge [the Judge] dated February 5, 2015, finding
that the respondent met the residency requirement under section 5(1)(c) the
Act, and approving her application for Canadian citizenship.
I.
Background
[2]
The respondent, born on February 6, 1992 in Iran
became a permanent resident of Canada on November 21, 2004 and submitted an
application for Canadian citizenship on June 30, 2010. On her citizenship
application, the respondent declared 1,142 days of presence in Canada and 318
days of absence during the relevant period at issue [the Relevant Period]. For
most of the Relevant Period, the respondent was a minor.
[3]
After taking her citizenship test and residence
questionnaire, a citizenship officer employed by Citizenship and Immigration
Canada [CIC] reviewed the respondent's file and prepared a File Preparation and
Analysis Template [FPAT]. The citizenship officer noted that of the respondent’s
five declared absences from Canada, CIC could not verify the return date of
January 7, 2007 with a Canadian re-entry stamp or through an Integrated Customs
Enforcement System [ICES] report. In addition, the citizenship officer observed
that the respondent stated that she had taken Iranian secondary school courses
while resident in Ontario and travelled to Iran to take exams. The citizenship
officer could not verify the dates of the courses nor was there any proof of
education in Ontario during this period. Credibility was identified as a
concern and a hearing was recommended.
[4]
The respondent attended a citizenship hearing
with the Judge in February, 2015 [the hearing]. Only the respondent’s residency
was at issue at the hearing.
II.
Decision
[5]
The Judge granted the respondent’s application
after finding on a balance of probabilities that she met the residence
requirement under section 5(1)(c) of the Act. The Judge cited jurisprudence
recognizing that a citizenship applicant bears the burden of proving, on a
balance of probabilities, that they meet the conditions of the Act (Sager v
Canada (Minister of Citizenship and Immigration), 2005 FC 1392 at paras
20-21, 152 ACWS (3d) 21). The Judge applied the physical presence test under Pourghasemi
(Re), [1993] FCJ No 232 at paras 4, 6, 9 Imm LR (2d) 259.
[6]
The Judge recognized that there were credibility
concerns and noted that the respondent declared a sufficient number of days of
presence in Canada during the Relevant Period but that the documentation made
it difficult to confirm her statements.
[7]
The Judge’s reasons focus on the factual
elements of the application and, generally address the credibility concerns
raised by the citizenship officer, noting that:
A. there are some gaps in the respondent’s residence address in the Relevant
Period, but noted her young age and that she was living with her parents in
Mississauga;
- the respondent
has provided a passport covering the Relevant Period and that the sole
discrepancy was the absence of a re-entry to Canada stamp on or about
January 7, 2007. The Judge concluded that the exit stamp from Iran
indirectly confirms her return to Canada on the same date;
C. the respondent clarified her academic status during the Relevant
Period satisfying the Judge that she took Iranian classes through the internet
and went to Iran for the exams, not to attend and complete actual courses;
D. the respondent then joined the Canadian school system in 2009,
obtaining her Ontario Secondary School Diploma in 2010; and
- the respondent’s
parent’s provision of economic support to her explained the lack of
documentation on the respondent’s financial activity over the Relevant
Period.
[8]
The Judge ultimately concluded:
After a lengthy hearing, the examination of
the documents provided by the applicant at the time of the application, the RQ
and during the hearing, I did not find valid elements to dispute the applicant’s
statements about the days of his [sic] physical presence in Canada.
III.
Issues
[9]
The applicant raises the following issues on
this application for judicial review:
A. What is the applicable standard of review?
B. Did the Judge fail to explain how the respondent proved that she met
the residence requirement?
C. Was it unreasonable for the Judge to conclude that the respondent
met the physical presence test?
IV.
Analysis
A.
Standard of Review
[10]
The parties agree that the Judge’s findings
engage questions of fact and mixed fact and law that are to be reviewed on the
reasonableness standard: (El Falah v Canada (Minister of Citizenship and
Immigration), 2009 FC 736 at para 14, 183 ACWS (3d) 916; Farag v Canada
(Minister of Citizenship and Immigration), 2013 FC 783 at paras 24-26).
[11]
Referring to, among others, the Supreme Court of
Canada’s decision of Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), [2011] 3 S.C.R. 708, [Newfoundland Nurses]
, Justice Denis Gascon held in Canada (Minister of Citizenship and
Immigration) v Suleiman, 2015 FC 891 at paragraph 37 that:
[37] […] An alleged insufficiency of
reasons is no longer a stand-alone basis for granting judicial review: reasons
need not be fulsome or perfect, and need not address all of the evidence or
arguments put forward by a party or in the record.
[12]
The reasons supporting a decision will be
considered reasonable where, when read as a whole and in conjunction with the
record, they provide the justification, transparency and intelligibility
required to allow the court to understand why a decision was made and to assess
whether or not that decision falls within the range of acceptable outcomes
based on the facts and the law (Suleiman at paras 38-41; Newfoundland
Nurses at paras 14, 16, Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190
at para 47). It is not the court’s role on judicial review to reconstruct the
Judge’s reasoning by referring to the evidentiary record. Reviewing the Judges
reasons should not require a de novo examination of the record. Where this is
necessary it is unlikely that the decision meets the requirements of
justification, transparency and intelligibility as set out in Dunsmuir:
(Canada (Minister of Citizenship and Immigration) v Bayani, 2015 FC 670,
[Bayani], at para 36).
B.
Did the Judge fail to explain how the respondent
proved that she met the residence requirement?
[13]
The applicant argues that the Judge failed to
justify his conclusion that the respondent met the residency requirement of the
Citizenship Act.
[14]
The applicant specifically argues that the Judge
failed to and should have addressed (1) the absence of any evidence that it
was possible to complete secondary school courses by distance learning; (2) the
inclusion of a physical education mark on the Iran school transcripts, as it is
not evident how one would complete a physical education course through distance
learning; (3) the absence of any objective evidence of physical presence in
Canada during the school months in the years that the respondent claims she was
pursuing Iranian secondary school course by way of distance learning in
Ontario; (4) the absence of medical appointments in the months that school was
in session during this period; (5) that all confirmed re-entries into Canada
on the respondent’s passport were during the summer; (6) that the respondents
involvement in volunteer work in Canada was limited to 2006; and (7) that the
respondent obtained her health care card and drivers licence during the summer
months.
[15]
The applicant submits that the above noted facts
are inconsistent with the Judge’s conclusion that the respondent had satisfied
the residency requirement for citizenship. The Judge’s failure to address these
facts, particularly in light of the credibility concern raised by the
citizenship officer, cause the reasons to lack in transparency, intelligibility
and justification making it impossible to assess whether or not the ultimate
conclusion is within the range of acceptable outcomes.
[16]
I disagree with the applicant’s position. The
Judge states in his reasons that he has undertaken a lengthy hearing and
examined all of the documentation and addresses the facts and circumstances
that triggered the credibility concerns identified by the citizenship officer.
It is evident from the Judge’s reasons that he accepted the respondent as
credible in all of the areas of concern identified by the citizenship officer
in the FPAT and specifically addressed each of these areas in his reasons.
[17]
I agree with and adopt the submissions of the
respondent found at para 34 of the respondent’s memorandum of argument, which
states:
34. With regard to the adequacy of the
Citizenship Judge’s reasons, the Citizenship Judge precisely enumerated the
reasons for the decision that he made. They were listed in the “Facts” section
of his written reasons. Perhaps they should have been listed in the “Analysis”
section, however, they were indeed listed and they now allow this reviewing
Court or anyone else to understand why the Citizenship Judge came to the
conclusion that he did. In the “Facts” section the Citizenship Judge reviewed
each issue or fact that went into the totality of his reasoning and they were:
-the Respondent’s
passports that were provided;
-the explanation of
the January 7, 2007 entry to Canada;
-the Respondent
residing with her parents in Canada;
-the nature of the
Respondent’s distance learning courses;
-the Respondent’s
move to university in Sudbury;
-the reasons
behind obtaining a USA Green Card and the timing;
-the explanation
for the lack of financial documentation;
-the place of
residence of the Respondent’s immediate family;
-the volunteer work
carried out in Canada.
[18]
The Judge’s reasons need not be perfect nor
comprehensive and the reviewing court must consider them in context of the
process, the submissions of the parties and the evidence (Newfoundland
Nurses para 18). The Judge’s reasons are not as long and detailed as the
court might wish but they are sufficient to demonstrate the basis for the Judge’s
findings and conclusions (Komolafe v Canada (Minister of Citizenship and
Immigration), 2013 FC 431 at paras 10-11, 16 Imm LR (4th) 267). This is at
the core of what the Court must keep in mind when conducting a reasonableness
review: Dunsmuir holds that the Court must not set aside a decision
merely because it disagrees with the conclusion reached (paragraph 47), Newfoundland
Nurses holds the Court must not set aside a decision merely because the
Court disagrees with the composition of the reasons: “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 falls
within the range of acceptable outcomes, the Dunsmuir criteria are met”
(Newfoundland Nurses at para 16).
C.
Was it unreasonable for the Judge to conclude
that the respondent met the physical presence test?
[19]
The applicant submits it was unreasonable for
the Judge to conclude that the respondent met the residency requirement since
the evidence demonstrated the contrary. Specifically the applicant argues the
lack of evidence of physical presence, the lack of evidence to establish that
distance learning is available in the Iranian secondary school system and the
finding that an exit stamp from Iran in the respondent’s passport on January 7,
2007 indirectly confirmed the respondent’s return to Canada on that same day
all demonstrate a failure on the part of the respondent to satisfy the
evidentiary burden she bore and therefore undermines the reasonableness of the
decision.
[20]
Again I am not convinced by the applicant’s
arguments. The Judge turned his mind to each of the areas, considered the
evidence contained in the record, the additional documentation produced by the
respondent and the information provided by the respondent in a lengthy hearing
conducted with her (Suleiman at para 23). As noted above, on this basis
the Judge concluded that the respondent was credible and accepted her evidence.
[21]
The applicant relies on the decision of Chief
Justice Paul Crampton in Huang v Canada (Minister of Citizenship and
Immigration), 2013 FC 576 at paras 56-57, 22 Imm LR (4th) 180, [Huang]
to support the argument that it was unreasonable for the Judge to conclude that
the exit stamp from Iran could be viewed as reliable evidence of re-entry into
Canada. In my opinion Huang can be distinguished. Ms. Huang was a very
active traveller who had entered numerous countries on numerous occasions. It
was in this context that the Chief Justice held that it was reasonable for the
Citizenship Judge not to infer an exit stamp from China was reliable proof of
travel to Canada. In this case the applicant's travel documentation does not
demonstrate a history of active travel to other countries other than Iran
during the Relevant Period, and the only discrepancy between her reported
travel and her travel documentation was the missing re-entry to Canada on
January 7, 2007. While the applicant may disagree with the Judge’s conclusion
it was not in my opinion unreasonable for the Judge in the circumstances of
this case to infer that the exit stamp was reliable proof of entry into Canada.
Furthermore, the absence of the disputed re-entry on the ICES report does not
in and of itself mitigate the reasonableness of the Judge's finding that the
respondent re-entered Canada on January 7, 2007. This Court has previously
recognized, based on submissions from the Minister, that ICES reports are not
free from error: (Bayani at para 43).
[22]
While it may well have been better for the Judge
in this case to have provided more analysis in support of the decision, the
record demonstrates the Judge inquired into the potential gaps, satisfied
himself that the respondent was in Canada as a teenager and took online Iranian
courses while in Canada, travelling to Iran for the exams. While the Judge does
not directly address the question of physical fitness courses and how he was
satisfied that this was accomplished through distance learning, I am satisfied
that this is incidental to the broader question of distance learning (Newfoundland
Nurses at para 16). As noted by the respondent in oral argument it is not
per se unreasonable for a physical fitness course to be taken online. There is
also evidence on the record that there has been a rapid rise in the use of
information and communication technologies in schools in Iran, with schools in
large centres being linked to the internet. Thus, contrary to the applicant's
submission, there is not a complete absence of documentary evidence to underpin
the findings and conclusions of the Judge in this regard.
[23]
I am of the view that the applicant's arguments
merely dispute the quality of the Judge’s reasons and reflect disagreement with
the Judge’s findings in these areas: submitting a different and equally
possible interpretation of the evidence before the decision-maker does not
render the decision unreasonable. It should be trite to note that it is not for
a reviewing court to substitute its view of a preferable outcome nor to reweigh
the evidence (Canada (Citizenship and Immigration) v Khosa, [2009] 1 SCR
339 at paras 59, 61).
[24]
While the Court owes significant deference to
the Judge, I am also mindful of my colleague Justice Richard Mosley’s caution
in Canada (Minister of Citizenship and Immigration) v Vijayan, 2015 FC
289 at paras 61-63, 33 Imm LR (4th) 213:
[61] In Canada (Citizenship and
Immigration) v Pereira, 2014 FC 574 at para 21, Justice LeBlanc recalled
that:
Canadian citizenship is a privilege
that ought not to be granted lightly and the onus is on citizenship applicants
to establish, on a standard of balance of probabilities, through sufficient,
consistent and credible evidence, that they meet the various statutory
requirements in order to be granted that privilege [references omitted].
[62] At para 31, he continued that it
is reckless for a Citizenship Judge to accept an individual’s testimony on
residence in Canada as true in the face of omissions and contradictions, and in
the absence of corroborating evidence.
[63] Here, there were omissions in the
citizenship application which only came to light at the hearing. Even if the
respondent did not contradict himself, there was no corroborating evidence as
to the duration of his undeclared absences. It was not open to the Citizenship
Judge to draw arbitrary assumptions from the respondent's testimony, so as to
relieve him of his burden to substantiate his application for citizenship.
[25]
This however, is not the case here. As shown
above the Judge did turn his mind to the gaps in the record, received
explanations from the respondent and accepted those explanations after the
benefit of a long hearing and the evidence contained in the documentation
provided by the respondent.
[26]
After considering the record, the oral and
written submissions and the jurisprudence, I am of the opinion that the
decision is transparent, intelligible and justified, reflecting a possible
outcome based on the facts and the law - it is reasonable. For these reasons the
application is dismissed.
[27]
The parties did not identify a question for
certification.
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